The absence of a regular sanctioned post for a position precludes the consideration of regularization, and the decision to create or abolish a post is an administrative function.

B.P. Katakey, J.

1. The petitioner Smti. Reshmi Basfor by the present writ petition is praying for a direction to the Respondents, particularly the State of Assam to create a regular post of Sweeper in the office of the Chief Judicial Magistrate, Sonitpur at Tezpur to facilitate her appointment with retrospective effect i.e. since her initial engagement on daily wage basis by the Chief Judicial Magistrate, Sonitpur at Tezpur contending inter alia that in the year 1975 she was engaged as Sweeper on daily wage basis with an assurance for regular appointment in course of time and though the office of the CJM, Sonitpur at Tezpur has been regularly and continuously utilizing her services, she has not been regularized in service due to lack of any regular sanctioned post of Sweeper in the said office. It has further been contended that though the CJM from time to time including the communication dated 13.11.98 is requesting the Secretary to the Government of Assam, Judicial Department for creation of a post of Sweeper in his office for the purpose of regularizing the services of the petitioner, nothing has been done by the State till date.

2. The CJM (Respondent No. 3) filed the affidavit on 10.09.2005 admitting that the writ petitioner was engaged as a Sweeper on daily wage basis in his office and though he made regular correspondences to the Registrar (Judicial) of this Court as well as the Secretary to the Govt. of Assam in the Judicial Department for creation of a post of Sweeper to absorb the petitioner in the said post, no such post has been created and as such, the petitioner's case for regular absorption could not be considered as the creation of post is not within his competence.

3. The Joint Legal Remembrancer & Joint Secretary to the Govt. of Assam, Judicial Department also filed an affidavit on behalf of the Respondent No. 1 contending that the writ petitioner was engaged on daily wage basis without any sanctioned post and her claim for regular appointment could not have been considered in the absence of any such sanctioned post. It has further been contended that the post of Sweepers in the Districts and Subordinate Courts are created by the Government only on receipt of formal proposal from the High Court wherever it is justified to meet the exigencies, however in the absence of any regular sanctioned post, the head of the office may engage Sweepers on contingency/daily wage basis as has been done in the instant case. It is also contended that the petitioner was engaged without following any recruitment procedure and as such, mere continuance of such workers do not create any legal right for regular appointment.

4. The writ petitioner filed a rejoinder affidavit thereafter reiterating her statement in the writ petition and claiming regularization in service. We have heard Mr. S.C. Biswas, learned counsel for the writ petitioner; Mrs. B. Goyal, learned State counsel and also Mr. B.C. Das, learned Standing Counsel for the Gauhati High Court. Mr. Biswas has submitted that as the Respondent No. 3 has extracted her services since 1975 as Sweeper on daily wage basis which has been admitted by the Respondent No. 3 in the affidavit-in-opposition as well as not denied by the Respondent No. 1, the petitioner is entitled to regularization in service and therefore, the State of Assam is bound to create a regular sanction post of Sweeper in the office of the CJM, Sonitpur at Tezpur so that the writ petitioner can be regularized in service against such post. It has further been submitted that her long engagement for last 32 years has generated hope in her mind that her services would be regularized and the authority in not doing so, has violated her right to get her services regularized

5. Mrs. B. Goyal, learned State counsel on the other hand, has submitted that the writ petitioner has not stated as to how and in what manner she has been initially engaged in the year 1975 i.e. whether by conducting any interview or undergoing an