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2012 DIGILAW 441 (JK)

Ab. Ahad Sofi v. Chairman H/U. D SDA & Ors.

2012-07-20

HASNAIN MASSODI, M.M.KUMAR

body2012
M.M. Kumar, C J.;— 1. The short question of law raised in the instant Letters Patient Appeal is whether a post could be abolished by the competent authority which may result in deprivation of promotion to an employee who had been working in the feeder cadre. Having failed before the learned Single Judge, one such employee has filed the instant appeal by invoking clause 12 of the Letters Patent Rules and has challenged the view taken by the learned Single Judge rendered on 27.04.2006 while disposing of his writ petition registered as SWP no. 513 of 2005. 2. The facts are not in dispute. The appellant was appointed as Driver by the Srinagar Development Authority (for brevity the Authority') on 01.01.1976 in the pay scale of Rs.220-433. On 06.08.1997 two posts of Drivers were upgraded to the grade of Chauffeurs carrying pay scale of Rs. 1640-2900. The appellant and one Mussa Malla were given the benefit of up-gradation and were placed in the pay scale of Rs. 1640-2900 vide order dated 06.0.8.1997 with effect from 01.01.1995 (Annexure-A). On 11.6.1999 one post of Foreman in the grade of Rs.5700-10100 was created by the Authority and Mussa Malla, Chauffer, who was senior to the appellant was given promotion on the said post (Annexure-B) with effect from 01.06.1999. The aforesaid Mussa Malla superannuated and the post of Foreman in the pay scale of Rs.5700-10100 became available. 3. On 04.06.2002, the appellant filed a representation to the Authority with a prayer for considering his case for promotion to the post of Foreman. His representation was forwarded in original to the Vice Chairman of the Authority with the remarks that the appellant, who has been a Jeep Driver, was performing his duties to the satisfaction of the Department and his case for promotion on the post of Foreman was recommended which was vacant at that stage. No action was taken on that representation. However, vide order dated 14.05.2005 the post of Foreman was abolished and reduced to the post of Driver by adding it to the cadre strength of Drivers. The order of abolition of post of Foreman dated 14.05.2005 reads as under:- "Subject:- Creation of post of Driver against post of Foreman in SDA ORDER NO. SDA/VC/326 of 2005 DATED: 14/05/2005 Pursuant to the approval of Hon'ble Chairman, Srinagar Dev. The order of abolition of post of Foreman dated 14.05.2005 reads as under:- "Subject:- Creation of post of Driver against post of Foreman in SDA ORDER NO. SDA/VC/326 of 2005 DATED: 14/05/2005 Pursuant to the approval of Hon'ble Chairman, Srinagar Dev. Authority, the post of Foreman has been reduced to the post of driver, thereby raising the sanctioned strength of drivers to nine. By Order NO: SDA/VC/1870-78Sd/- Dt: 14/05/2005 Sd/- Vice Chairperson Srinagar Dev. Authority Srinagar' 4. Feeling aggrieved by the aforesaid order, the appellant challenged the same by seeking a writ of certiorari and the learned Single Judge while placing reliance on a judgment of the Constitution Bench of Hon'ble the Supreme Court in N. Ramanatha v. State of Kerala AIR 1973 SC 2641 , has held that the Government has right to abolish a post and the power to create or abolish a post is not relatable to doctrine of pleasure envisaged by Article 310 of the Constitution and dismissed the writ petition filed by the appellant. 5. Mr. M. A. Qayoom, learned counsel for the appellant, has submitted that the appellant has been stagnating on the post of Chauffer for a number of years. According to him, the post of Foreman in the higher pay scale was created to break that stagnation by providing avenues of promotion to the Chauffeurs. Learned counsel has maintained that the post cannot be arbitrarily created or abolished without there being any justification on facts, particularly when it would result in deprivation of a fundamental right of consideration of the appellant for promotion to that post. 6. Mr. Javid Iqbal, learned counsel for the respondent-Authority has, however, argued that abolition and creation of a post resulting in deprivation of employment, is the sole prerogative of the employer. According to the learned counsel, unless some malice is shown, the right of abolition or creation of the post has to remain intact and cannot be interfered with. Learned counsel has maintained that the view taken by the learned Single Judge does not call for any interference and the appeal is wholly without merit. 7. Having heard the learned counsel for the parties and perusing the pleadings with their able assistance, we are of the considered view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. 8. 7. Having heard the learned counsel for the parties and perusing the pleadings with their able assistance, we are of the considered view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. 8. It is well settled that creation and abolition of posts; formation and structuring or restructuring of cadres, prescribing the source; and mode of recruitment and qualifications; and criteria of selection are matters which fall within the exclusive domain of the employer. Such decisions of the employers are not immune from judicial review. However, the court would be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The aforesaid observations have been made by a three-Judge Bench of Hon'ble the Supreme Court in the case of Official Liquidator v. Dayanand and ors (2008) 10 SCC 1 . In para 59, Hon'ble the Supreme Court has followed and applied the principles laid down by the Constitution Bench in N. Ramanatha's case (supra) on which reliance has been placed by the learned Single Judge. Speaking for the Bench, G.S. Singhvi has observed as under:- "59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the course and mode of recruitment and qualifications and criteria and selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides." 9. In para 60, their Lordships of the Supreme Court placed reliance on a catena of judgments and proceeded to cull out various propositions. In para 60, their Lordships of the Supreme Court placed reliance on a catena of judgments and proceeded to cull out various propositions. It would be profitable to read para 60, which is as under: - "60.1n State of Haryana v. Navneet Verma (2008) 2 SCC 65, M. Ramanatha Pillai v. State of Kerala (1973)2 SCC 650 , Kedar nath Bahl v. State of Punjab (1974) 3 SCC 21 , State of Haryana v. Des Raj Sangar (1976) 2 SCC 844 , N.C. Singhal (Dr.) v. Union of India (1980) 3 SCC 29 and Avas Vikas Sanghathan v. Engineers Assn. (2006) 4 SCC 132 and culled out the following principles: (Navneet Verma case, SCC p.70, para 14. "(a) the power to create or abolish a post rests with the Government; (b) Whether a particular post is necessary is a matter of depending upon the exigencies of the situation and administrative necessity; (c) creation and abolition of posts is a matter of government policy and every sovereign Government has the power in a interest and necessity of internal administration; (d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public; (e) the court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual; (f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted." 10. In the present case, the post of Foreman has been abolished in the year 2005 and we do not find any legal infirmity because it is for the Authority to decide whether a particular post is necessary. It is a matter of policy of the Authority. In that regard, the power of the Authority is in the nature of sovereign power and in the interest of internal administration. 11. Mr. Qayoom's argument that, there must be circumstances explained to the Court justifying abolition of the post, would not require any detailed consideration in the absence of any malafide on the part of the Authority to abolish the post. The financial consideration of higher pay of the post of Foreman itself can be a valid consideration for abolishing the post. Mr. Qayoom's argument that, there must be circumstances explained to the Court justifying abolition of the post, would not require any detailed consideration in the absence of any malafide on the part of the Authority to abolish the post. The financial consideration of higher pay of the post of Foreman itself can be a valid consideration for abolishing the post. In some of the judgments cited in para 60 of the judgment in Dayanand's case (supra), sometimes employees had even lost employment on account of abolition of post. In the present case the prospects of seeking promotion have come to an end by the abolition. Even if, promotional post exists the appellant could not have claimed that he must be considered for promotion merely because he is the senior most. The aforesaid view is based on well settled principles of law that an employer cannot be compelled to promote an employee merely because a vacancy in the higher/promotional cadre is available. Again it is the prerogative of the employer to consider an employee for promotion. In a case, where a person junior to an employee is promoted ahead of a senior in that cadre then such a senior employee would become entitled in law to be considered for promotion with effect from the date his junior has been considered and given promotion. Moreover, in the present case, there was no allegation of malafide and all that was argued before us was that the appellant deserved to be considered for promotion to advance his career by bringing an end to the stagnation. It is not possible to accept the argument concerning the stagnation from the post of Driver. The appellant, as per his own showing (in para no. 2 of the memorandum of appeal) was given promotion in the grade of Chauffer in the higher scale of Rs. 1640-2900. Examined from any angle, no case is made out by the appellant warranting interference by the Letters Patent Bench. 12. As a sequel to the above discussion, this appeal fails and the same is dismissed. 13. No costs.