Over 2 lakh Indian cases. Search powered by Google!

Case Details

SHIVANAND VERMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Shivanand Verma v. State Of U.P. And Others - WRIT - A No. 53801 of 2006 [2006] RD-AH 20154 (28 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                  Reserved

Delivered on 28.11.2006    

Civil Misc. Writ Petition No.53801 of 2006

Shivanand Verma

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J

Petitioner has approached this court questioning the validity of the decision dated 13.9.2006 taken by the Labour Commissioner U.P. at Kanpur canceling promotion, which was accorded to  petitioner as Senior Assistant in the pay scale of Rs. 4000-7000,   and reverting him back as Senior Assistant  in the pay scale of Rs. 4000-6000.

Brief background of the case is that petitioner was initially appointed as Class IV employee on 1.2.1981 in the office of Labour Commissioner, U.P. Petitioner thereafter was promoted as Junior Clerk  on 1.2.1994. Thereafter, in the year 1997 petitioner was promoted as Senior Assistant in the pay scale of Rs. 4000-6000. Petitioner has contended that State Government on 15.3.2003 in order to fill up backlog  vacancies qua Physically Handicapped candidate directed for taking steps in this respect. Petitioner has contended that pursuant to aforementioned letter of Government for filling up backlog vacancy remaining under the quota of Physically Handicapped  in Group 'C' and Group 'D' posts in the different department of the State. Departmental Selection Committee  was  constituted and claim of petitioner was considered and recommendation was made for according placement to petitioner as Senior Assistant in the pay scale of Rs. 4500-7000. Petitioner has contended that pursuant to  said recommendation, since 9.9.2003 he has been continuously performing and discharging his duty as Senior Assistant and has been drawing his salary also in the said scale. On 16.9.2005 show cause notice was issued to the petitioner to show cause as to why promotion accorded to petitioner be not cancelled. Petitioner filed his reply on 25.9.2005 to the said show cause notice. Thereafter on 13.9.2006 order has been passed by Labour Commissioner, U.P. Kanpur canceling the promotion accorded to petitioner to the post of Senior Assistant in the lower pay scale of Rs. 4500-7000 and directing reversion of petitioner to the post of Senior Assistant  in the pay scale of Rs. 4000-6000. At this juncture present writ petition has been filed.

Sri Ashok Khare, Senior Advocate, learned counsel for the petitioner contended with vehemence that in the present case in consonance with the provision of Persons with Disability ( Equal   Opportunity Protection of Rights and Full Participation) Act 1995, petitioner has been offered appointment wherein section 33 of aforementioned 1995 Act  mandate appropriate Government to appoint in every establishment such percentage of vacancies not less than three percent from persons suffering from infirmities described and as  1995 Act, is a Central Act and U.P. Public Service (Reservation for Physically Handicapped  Disabled Dependant of Freedom Fighter and Ex -Servicemen) Act, 1993 which provides for reservation in favour of Physically handicapped at the stage of direct recruitment and as provisions of U.P. Act No.3 of 1993  were amended  in year 1997, without there being any  assent of President, as such the provision of direct recruitment being repugnant to section 33 of 1995 Act is unsustainable and consequently as  per 1995 Act, the promotion, which has been accorded was fully justified,  as here promotion has been made against identified post wherein 75% of the vacancies were not filled up by promotion and as such decision which has been taken is unjustified and uncalled for and as such writ petition deserves to be allowed.

Sri C.B. Yadav, Chief Standing Counsel on the other hand contended that in the present case there is no repugnency in between the State Act and Central Act, inasmuch as Central Act merely mandates for providing appointment, whereas State Act keeping in view of aforementioned mandate prescribes the mode as to how said goal is to be achieved and as there is no provision of promotion qua physically handicapped category candidates in public services and posts in connection with the affairs of State as such by no stretch of imagination under Physically Handicapped Category,  petitioner could have been accorded promotion. As promotion accorded was clearly dehors the rules , same vested no right to petitioner on the post, as such no interference is warranted, writ petition is liable to be dismissed.

Before proceeding to consider the question raised, the provisions which covers the field of reservation for Physically Handicapped persons in the State of U.P. is being looked into. State Government in order to fulfill social object of providing employment to Physically Handicapped incumbents in public services and post from time to time, issued Government Order dated 18.7.1972, 20.8.1977 and 25.5.1978 to the extent of 2%. There was no comprehensive Legislation with regard to right of Physically disabled persons  enacted either by  Parliament or by State Legislature of U.P.

        A meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on Ist to 5th December, 1992 adopted the proclamation on the the full participation and equity to people with disabilities in the Asia and the Pacific Region. India was signatory to this proclamation.

         State of U.P. came up with U.P. Act No.4 of 1993 which provides for reservation of posts for Physically Handicapped Persons Dependants of Freedom Fighter and Ex -Servicemen and for matter connected thereto and same was known as U.P. Public Services Reservation for Physically Handicapped Ex-Servicemen and Dependent of Freedom Fighter Act 1993. Said act received assent of President on 29.12.1993 and was published in U.P. Gazette on 30.12.1993.

         Parliament too found it  necessary to enact a suitable legislation to  provide for the social welfare obligation of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training employment and rehabilitation of persons with disabilities to create barrier free environment of remove any discrimination, to counteract any situation of the abuse and the exploitation, to lay down a strategies for comprehensive development of pro gramme and service and equalization of opportunities for persons with disabilities and to make special provision for the integration of persons with disabilities into the social mainstream. The Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 ( Act No.1 of 1996)  was as such enacted, to give effect to the proclamation. Section 32 and 33 of this Act in Chapter VI provide for employment. These Sections are relevant for the purposes of the issue involved and as such are quoted as below:-

32. Identification of posts which can be reserved for persons with disabilities- Appropriate Governments shall.

(a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up date the list taking into consideration the development in technology.

33. Reservation of Posts:- Every appropriate Government shall appointment in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from:-

(i) blindness or low vision.

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the post of identified for each disability;

Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions , if any, as may be specified in such notification, exempt any establishment from the provisions of this Section."

       

Thereafter in order to synthesize the State Act in  tune with Central Act, U.P. Act No.4 of 1993 was amended by U.P. Act No. 6 of 1997. The definition of physically handicapped persons was amended. The blindness or low vision, hearing impairment and locomotor disability were provided to be disabilities for reservation. Low vision was defined separately. The substituted clause (f) of Section 2 provides that the words and expressions used but not defined in the Act and defined in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes ) Act, 1993, shall have the same meaning assigned to them in that Act. The expression' Public Service' was given the same meaning as in U.P. Act No. 4 of 1993. Section 3 was also amended, providing for 3% reservation for physically disabled persons in such public service and posts as the State Government may by notification identify, with 1% of the vacancy for each category of the persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. It was also provided in the substituted sub-section (5) of Section 3 that where, due to non-availability of suitable candidates any of the vacancies reserved under sub section (1) remained unfilled it shall be carried over to the next recruitment. The amended sub -section (3) is quoted as below.

3.  Amendment of Section 3. In Section 3 of the principal Act.

(a) for sub-section (1) , the following sub section shall be substituted, namely:-

"(1) There shall be reserved at the stage of direct recruitment,

(i) in public services and post two per cent of vacancies for dependent of freedom fighters and one per cent of vacancies for ex-servicemen;

(ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from

(a) blindness or low vision;

(b) hearing impairment; and

(C) locomotor disability or cerebral palsy."

(b) sub-section (2) shall be omitted.

(C) in sub-section (3) for the words" Backward Classes", the words " Other Backward Classes of citizens" shall be substituted;

(d) sub-section (4) shall be omitted;

(e)for sub-section (5), the following sub-section shall be substituted namely:-

"(5) Where, due to non availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment";

             

U.P. Act No. 4 of 1993 was again amended by way of U.P. Act No. 29 of 1999, however this subsequent amendment is not relevant for the purposes of the issue, raised in present writ petition

After aforementioned provisions have been noted, question to be answered is as to whether in between Central Act Act No. 1 of 1996 Section 33 and State Act, Section 3 (Act No. 4 of 1993)   amended by Act No. 6 of 1997 is there is any repugnancy.

       Article 254 of the Constitution of India provides that if any provisions of law made  by the Legislature of the State is repugnant to any provision of law made by the Parliament which the Parliament is competent to enact or to any provision of the existing law, with respect to one of the matters enumerated in the concurrent List, then subject to the provisions of clause (2) the law made by the Parliament whether passed before or after the law made by the Legislature of such State, shall prevail and the law made by the Legislature of the State shall to be extent of repugnancy be void. Clause (2) of Article 254 provided that where the law made by the legislature of a State, with respect to one of the matters enumerated in the concurrent List contains any provisions repugnant to the provisions of an earlier law made by the Parliament, or an existing law with respect to that matter then, the law so made by the legislature of such State, shall if it has been reserved for the consideration of the President, and has received is assent, prevail in that State.

             In the present case, Act No.1 of 1996 provide for special measures to give full participation and equality to the people with disabilities. It is a social welfare measure. The Act was enacted, to give effect to the proclamation signed by India in the Meeting to Launch the Asian and Pacific Decade  of Disabled Persons, 1993-2002, convened by the Economic and Social commission for Asia and Pacific held at Beijing on Ist to 5th December, 1992. The act is a comprehensive legislation for providing equality to disabled persons. A reference to the entries in the 7th Schedule, shows that the Act falls within the Entries 9 (Relief of the disabled and unemployed), Entry 13 (Participation in International Conference, Associations and other Bodies and Implementing of decisions made thereat), and Entry 70 (Union Public Services, All India Services, Union Public Service Commission). It may also be referred to Entry 23 of List III (Social Security and Social Insurance, employment and unemployment). The State Act namely U.P. Act No. 43 of 1993 refers to Entry 41 in List II (State Public Services, State Public Service Commission).

In order to test, that any provision of law made by legislature of State is repugnant to any provision of law, made by Parliament which the Parliament is competent to enact, in respect of one of the matters enumerated in concurrent  list, the true character of enactment as a whole including its object, scope and  effect is to be examined, and then the principle of pith and substance is to be applied, to conclude that there is repugnancy. At this juncture, the view point of Hon'ble Apex Court in the Case of Union of India Vs. Shah Goverdhan  L. Kabra Teachers College, (2002) 8 SCC 228   is being looked into. Relevant  Paragraph 7 reads as follows.

           "7.   It is further  a well settled principle that entries in the different lists should be read together without giving a narrow meaning to any of them. Power of Parliament as well as the State Legislature are expressed in precise and definite terms. While an Entry is to be given its wide meaning but it cannot be so interpreted as to override another Entry or make another Entry meaningless and in case an apparent conflict between different entries, it is the duty of the Court to reconcile them. When it appears to the Court that there is apparent overlapping between the two entries the doctrine of "pith and substance" has to be applied to find out the true nature of a legislature and the Entry within which it would fall. In case of conflict between entries in List I and List II, the same has to be decided by application of the principle of "pith and substance". The doctrine of "pith and substance" means that if an enactment substantially fall within the powers expressly conferred by the Constitution upon the legislature which enacted it , it cannot be held to be invalid, merely because it  coincidently encroaches on matters assigned to another legislature. When a law is impugned as being ultra vires of the legislative competence, what is required to be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is  in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object, scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to be determined not to degree but by substance. The doctrine of "pith and substance" has to be applied not only in cases of conflict between the powers of two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made."  

     Hon'ble Apex Court , in the case of Welfare Association A.R.P. Versus Ranjit P. Gohil, (2003) 9 SCC 358, explained the test of pith and substance,  in paragraph 31 of the judgment as follows:

            " A note of caution was sounded by the Constitution bench in Synthetics and Chemicals Ltd. Vs. State of U.P. The Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest possible amplitude of its power must be adopted. An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed. No Entry should be so read as to rob it of its entire content. A broad and liberal spirit should inspire those whose duty it is to interpret the Constitution. The Constitution is a living and organic thing and must adopt itself to the changing situations and pattern in which it has to be interpreted. To bring in any particular enactment  within the purview of any legislative power, it is the pith and substance of the legislation in question that has to be looked into by giving the widest amplitude to the language of the entries. The Constitution must be interpreted in the light of the experience gathered. It has to be flexible and dynamic so that it adapts itself to the changing conditions in pragmatic way. The undisputed constitutional goals should be permitted to be achieved by placing an appropriate interpretation on the entries. The Constitution has  the greatest claim to live. The claim ought not to be throttled. The directive principles of State Policy can serve as a  potent and useful guide for resolving the doubts and upholding the constitutional validity of any legislation, if doubted."

Hon'ble Apex Court, again in the case of Gujrat Ambuja Cements Ltd Vs. Union of India, AIR 2005 SC 3020, dealt with the principles of constitutionality of statute, in context of pith and substance theory, and held that the point at which collection of tax is to be made is question of legislative convenience, and same will not change the nature of tax.

Applying, the test of pith and substance, as settled by Hon'ble Apex Court, the case in hand is being looked into. U.P. Act No. 4 of 1993, received the assent of President on December, 29, 1993 and was published in U.P. Gazette on 30.12.1993. Section 3 of the aforementioned Act, provided for, reservation of five percent of vacancies, in public services and posts in connection with the affairs of the State, at the stage of direct recruitment, in favour of physically handicapped, dependent of freedom fighter, ex-servicemen.

        Section 33 of the 1995 Act (Act No. 1 of 1996) shows that every appropriate Government   has been mandated to make appointment in every establishment such percentage of vacancies not less than  3% for persons or   Class of persons  with disability defined in the posts identified for such disability. Section 33 of Act No. 1 of 1996 thus makes its mandatory for every appropriate Government to make appointment in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability and their is no escape route from the same, except in case, keeping view the nature of work exemption is accorded by appropriate Government. Section 33 of Act No. 1 of 1996 does not provide for procedure as per  which appointment is to be made. Expression appointment takes within its sweep appointment by way of direct recruitment, appointment by way of promotion and appointment by  way of transfer, which are settled mode of appointment. The mandate provided is for appointment and mode of appointment has not at all been provided for in said Act No. 1 of 1996 qua appointment in every establishment.

          U.P. Act No.4 of 1993, has been amended by U.P. Act No.6 of 1997, which has received the assent of Governor on 30.7.1997, and published in U.P. Gazette dated 31.7.1997. Vide this amendment, "blindness", "cerebral palsy", "locomotor disability and low vision," "hearing impairment", has been redefined. "Physically handicapped" has been redefined. Words and expressions which have not been defined under Act No.4 of 1993, same meanings have been assigned to them, as under U.P. Act No. 4 of 1994. In Section 3 of the Principal Act, it has been provided, that there shall be reserved, at the stage of direct recruitment, in such public services and post, as the  State Government may identify , by notification, one percent of vacancies each for the persons suffering from blindness or low vision, hearing impairment, locomotor disability.

            Seeing the true character of enactment, its object scope and effect it is clearly reflected that  the two enactments can go  hand in hand  with each other,  and there is no apparent overlapping, in between the two, as Section 33 of  Act No. 1 of 1996, mandates for appointment in establishment, such percentage of vacancies, not less than three percent whereas Section 3 of U.P. Act No. 6 of 1997, provides reservation to handicapped persons of 3% (one percent of vacancies each from each category),  and the point has been provided for achieving the said objective, i.e. at the stage of direct recruitment. The point at which, reservation is to be provided to handicapped persons, of 3% in an establishment, is the wisdom of legislature, referable to field given to the State vide Entry 41 in list II (State Public Services, State Public Service  Commission. There is no repugnancy whatsoever in between the two and to the contrary under the  U.P.  Act No. 6 of 1999 use of phrase, "at the stage of direct recruitment" is clearly referable to the fact that the mode of appointment has also been provided  for i.e. by way of direct recruitment. Consequently, there is no repugnancy whatsoever  in Section 33 of 1995 Act  and Section 3(i) of  U.P. Act No.  6 of  1997.

        Much reliance has been placed on the judgment of this Court, in the case of Shiv Kumar Singh Yadav Vs. State of U.P.  and others, 2001(2) LBESR 827 for the preposition that there is apparent conflict, in Section 33 of  1995 Act, and Section 3(ii) of U.P. Act No.1 of 1996. Said judgment will not at all come to the rescue of the petitioner for the reason, discussed in earlier part of the judgment. In the said judgment, there was apparent conflict between the term' physically handicapped' used in State Act and the expression, ''person with disability' as defined in Central Act, and as both the Acts were conversed under Entry 23 of List III, and as State Act was not reserved for consideration of President under Article 254 (i), the law made by Parliament  was to prevail over the Legislature of State. Here as noted above, there is neither any conflict nor any repugnancy.

            At this, juncture, it would be also, relevant to mention, that Full Bench of this Court, in the case of Sarika Vs. State of U.P. and others 2006(1) LBSER, considering the question of repugnancy in between Central Act and State Act, which are subject matter in the present case, has held as follows qua repugnancy pointed out so far conditionality for providing reservation for Physically Disabled Persons, in public service and post, and the identification of vacancies. Relevant paragraph nos. 35,36 and 37 are being quoted below.

35.Applying the test of pith and substance' as explained above  find Act No.1 of 1996 which seeks to achieve social welfare measures for physically disabled persons, not confined only to employment alone, falls within the Entry 23 (Social Security, and Social Insurance, employment and unemployment) of the List III of 7th Schedule of the Constitution of India and that the law made by the Parliament, in case of repugnancy will prevail over the law made by the legislature of the State namely U.P. Act No. 4 of 1993, and that clause (2) of Article 254 will not apply as the State Act was not reserved for the consideration of the President.

36.We have carefully considered the provisions of Section 32,33 and 47 of Act No.1 of `1996 and the provisions of the U.P. Act No. 4 of 1993 as amended in 1997 and in 1999, and do not find that there is any repugnancy so far as the provisions of reservation in public employment is concerned. Under Section 32 of the Central Act, the Appropriate Government defined in Section 2 (a) and which in relation to the State Government in sub-section (ii) to the State Government or any establishment wholly or substantially financed by that Government, or any local authority other than the Cantonment Board, the State Government, is required to identify posts in the establishment which can be reserved for the persons with defined disabilities. The reservation under Section 33, by the appropriate Government in every establishment is to be appointed on such percentage of vacancies not less than three per cent for persons or class of persons with disability of one percent shall each be reserved for persons suffering on blindness or low vision, hearing impairment, locomotor disability or cerebral palsy in the posts identified for each disability The appropriate Government may having regard to the type of work carried on in any department or establishment by notification subject to such conditions as may be specified exempt any establishment from the provisions of Section 33.

37.The expression' public services', in Section 3 of the State Act, by virtue of Section 2(f), as amended by the Amendment Act (U.P. Act No. 6 of 1997), borrows the definition in Section 2(c)  of U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and other Backward Classes ) Act, 1993. The reservation under Section 3, is at the stage of direct recruitment. This reservation is, however, subject to identification of 1% of vacancy each i.e., 3% for the persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. The identification of establishment and the post for such disability, under Section 32 and 33 of the Central Act, is also required as condition precedent under Section 3(1) (ii) of the State Act. Hence we find that so far as the unconditionality  for providing reservation for physically Disabled Persons, in public service and posts, and the identification of vacancies for each disability is concerned, there is no repugnancy between the provision of Central Act and the State Act.

Much reliance has been placed on the office memorandum dated 18.2.1999 and 20.11.1989. Both these office memorandum cannot  come to the rescue of petitioner for the simple reason that  these office memorandum have been issued by the  Ministry  of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi  which are clearly referable to establishment which are under the control of the Central Government. Coupled with this these Government instructions cannot prevail  and over ride  the statutory Act of the State Government, inasmuch as, it is well settled that  executive instructions cannot be permitted to over ride statutory provision.

          Recently Division Bench of this Court, in reference made in Civil Misc. Writ Petition No. 46861 of 2005, Satish Kumar Vs. State of U.P., has summed up the law, on the subject as follows.

          "Even otherwise, it is settled legal proposition that the executive instructions cannot override the statutory provisions. A Constitution Bench of the Hon'ble Supreme Court, in B.N. Nagarajan and others Vs., State of Mysore and others, AIR 1966 SC 1942, has observed as under:-

           "It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore or act contrary to that rule or the Act."

         Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and others, AIR 1967 Sc 1910, has observed as under:-

         " It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed."

The law laid down above, has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instruction should be subservient to the statutory provisions. (Vide the Commissioner of Income -tax, Gujarat Vs. M/s A. Raman & Co., AIR 1968 SC 49, Union of India and others. Vs. Majji Jangammayya and others., AIR 1977 Sc 757; Paluru  Ram Krishnaiah and others. Vs. Union of India and another. AIR 1990 Sc 166; Comptroller and Auditor General of India and others. Vs. Mohan Lal Mehrotra and others, AIR 1991 SC 2288; and C. Rangaswamaiah and others. Vs. Karnataka Lokayukta and others, AIR 1998 SC 2496).

The Constitution Bench of the Hon'ble Supreme Court, in Naga People's Movement of Human Rights Vs. Union of India., AIR 1998 Sc 431, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.

Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rul nor does it have any force of  law; while statutory Rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. and others Vs. Babu Ram Upadhya, AIR 1961 SC 711.

Similar view has been reiterated in Union of India dn another. Vs. Amrik Singh and others, (1994) 1 SCC 269; Swapan Kumar Pal and others. Vs. Samitabhar Chakraborty and others , (2201) 5 SCC 581; Khet Singh Vs. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad and others. Vs. State of Maharashtra and another., (2003) 3 SCC 48; Dr. Mahendra Prasad Singh Vs. Chairman Bihar Legislative Council, (2004) 8 SCC 747; Pahwa Chemicals (p) Ltd. Vs. Commissioner of Central Excise, New Delhi, (2005) 2 SCC 770; K.P. Sudhkaran and another. Vs. State of Kerala and others , (2005) 5 SCC 386; and K.K. Parmar Vs. High Court of Gujrat and others./, (2006) 5 SCC 789; and it has been observed that statutory rules create enforceable rights which cannot be taken away by issuing executive instruction.

Therefore, it is evident that subordinate legislation cannot override the statutory rules nor can it curtail the content and scope of the substantive provision for or under which it has been made."

        Consequently once  Act No. 6 of 1997 is there, which  talks  of providing reservation to Physically handicapped category candidates in vacancies to be filled  at the stage of  direct recruitment, then executive guidelines cannot be permitted to  prevail, and make way of promotion, which has not at all been provided for.

         It has also been sought to be contended that in the present case action has not been taken, within reasonable period.  Hon'ble Apex Court in the case of  State of Orissa Vs. Bardanan Sharma 1995 (Supp)3 SCC 249, Ram Chandra and others Vs. Union of India 1996 (1) SCC, 44, has taken the view that exercise of power is always subject to inherent limitation of power being exercised within reasonable period, and as to what would be reasonable period is Dependant upon different facts situation peculiar to each case. Here without there been any provision of law by misconstruing Government Order benefit of promotion was extended to petitioner. Two years period cannot be said to be unreasonable period. Once authorities concerned have come to the conclusion that according promotion to the petitioner is clearly dehors the statutory provision, then withdrawal of the same in no way infringes any legitimate right of the petitioner.

Consequently, writ petition as it has been framed and drawn is dismissed.

No orders as to cost.

Dt. 28.11.2006

T.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.