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Himachal Pradesh High Court · body

2012 DIGILAW 960 (HP)

Anupam Jhobta v. State of H . P

2012-12-11

RAJIV SHARMA

body2012
JUDGMENT Per Rajiv Sharma, Judge. Petitioners are working as Associate Professor and Assistant Professors in the Department of Radiology, I.G.M.C. Shimla. Respondent-State has decided to down grade one post of Professor and one post of Associate Professor in Radiology Department and one post of Associate Professor to Assistant Professor in Skin and VD vide notification dated 28.2.2012. Petitioners are aggrieved by the issuance of notification dated 28.2.2012. 2. Mr. Ajay Mohan Goel has vehemently argued that the action of the respondent-State to down grade the posts vide notification dated 28.2.2012 is illegal, arbitrary and unreasonable, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, the notification dated 28.2.2012 is outcome of colourable exercise of power and is also actuated with legal/factual mala fides. He also contended that respondent-State has not taken any steps to fill up these posts by way of direct recruitment, if candidates were not eligible for promotion as per Recruitment and Promotion Rules. 3. Mr. Ramesh Thakur, learned Assistant Advocate General, Mr. Vinay Kuthiala, learned Sr. Advocate, Mr. B.C. Negi, Mr. Bimal Gupta and Mr. Hamender Chandel have supported the notification dated 28.2.2012. 4. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 5. Respondent-State was directed to produce the records. The records have been made available by the respondent-State. 6. The recruitment to the post of Professor and Associate Professor is regulated under the rules called “The Himachal Pradesh Medical Education Service Rules, 1999” (hereinafter referred to as the “Rules” for brevity sake) notified on 2.12.1999. The post of Assistant Professor is to be filled up 50% by promotion failing which by direct recruitment and 50% by direct recruitment in the manner as specified in Appendix-B. The post of Associate Professor and Professor is to be filled up 100% by promotion failing which by direct recruitment. 7. Respondent No.5 made a representation to the Hon’ble Chief Minister on 21.5.2011 for downgrading the post of Associate Professor to Assistant Professor in the Department of Skin and VD. The same was referred by the Hon’ble Chief Minister to the Principal Secretary (Health). Ultimately, as is evident, from note Nos. 44 to 77, the proposal was made to down grade 14 posts of Professors and Associate Professors, i.e. 4 in I.G.M.C. Shimla and 10 in Dr. Rajendera Prashad Medical College, Tanda. The same was referred by the Hon’ble Chief Minister to the Principal Secretary (Health). Ultimately, as is evident, from note Nos. 44 to 77, the proposal was made to down grade 14 posts of Professors and Associate Professors, i.e. 4 in I.G.M.C. Shimla and 10 in Dr. Rajendera Prashad Medical College, Tanda. Approval of the Health Minister was also obtained. The Finance Department raised the following queries on 22.9.2011: I. Financial implications of the proposal. II. Date since when these posts are lying vacant. III. Workload of these departments vis-à-vis the number of sanctioned posts of these departments. IV. As per the proposal, many posts are proposed to be filled by promotion, if these posts are filled up by promotion, then how will these be restored in future? V. Posts created/filled up in IGMC and RPGMC Tanda since 1.1.2008.” 8. The information was supplied by the Administrative Department to the Finance Department as under: “The point wise information as sought by the Finance Department vide N-78/ante is as under:- 1. These posts are to be downgraded from the existing sanctioned posts and as such there is no financial implication involved. 2. All these posts are lying vacant since four & five years due to non eligible/available doctors in the feeder category. 3. The matter is directly involved with the public health. The number of patients has been increased subsequently in both the Medical Colleges due to intensive population increase and inflow of tourists and such others activities in due course of development. Further the number of MBBS seats has now been increased to 200 from 65. Hence there is dire necessity to meet out the MCI requirement as well as teaching of under graduate and post graduate students in the proposed departments as well as in the interest of patient care services. 4. The proposed posts will be downgraded till the present incumbent of the post become eligible for the post of Professor/Associate Professor. Thereafter same will be revived. 5. Details of the sanctioned posts in various categories in IGMC, Shimla and Tanda is as under: Details of total sanctioned posts in categories in both the Medical Colleges till date are as under: IGMC: Professor 52 Asso. Prof. 59 Asstt. Prof. 93 Dr. RPGMC Kangra at Tanda: Professor 33 Asso. Prof. 41 Asstt. Prof. Thereafter same will be revived. 5. Details of the sanctioned posts in various categories in IGMC, Shimla and Tanda is as under: Details of total sanctioned posts in categories in both the Medical Colleges till date are as under: IGMC: Professor 52 Asso. Prof. 59 Asstt. Prof. 93 Dr. RPGMC Kangra at Tanda: Professor 33 Asso. Prof. 41 Asstt. Prof. 58 Detailed of faculty promoted/appointed in both the Medical Colleges w.e.f. 1.1.2008 till date: IGMC, Shimla 1. Professor 30 2. Asso. Prof. 26 3. Asstt. Prof. 44 (38 prom. 6 HPPSC) Dr. RPGMC Kangra at Tanda: 1. Professor 13 2. Asso. Prof. 20 3. Asstt. Prof. 33 (24 prom. 9 HPPSC) +2 posts of Lecturers upgraded in person to that of Asstt. Prof. =35 4. Lecturer = 2 Detailed of posts created in various departments in both the Medical Colleges w.e.f. 1.1.2008 till date are as under:- IGMC: Shimla: Professor 22 Asso. Prof. 11 Asstt. Prof. 14 Tanda Professor 9 Asso. Prof. 10 Asstt. Prof. 9 The file is submitted w.r.t. N-78/ante of the Finance department and this matter may kindly be taken up with Finance department with the request that this matter pertains to public health directly and therefore is of utmost importance.” 9. However, the fact of the matter is that the Finance Department rejected the proposal vide note No. 82 on 7.10.2011. It is clear from note No. 84 that the Department sought department-wise details of the faculty members required as per norms for 100 MBBS/PG seats for both the colleges. Though the information was to be gathered as per note No. 84, but the Department received a communication dated 15.11.2011 from the Director Medical Education and Research for downgrading one post of Professor and one post of Associate Professor to the post of Assistant Professor in the Department of Radiology to the following effect: “Subject:- Regarding the latest status of Faculty positioning the Department of Radiology in I.G. Medical College, Shimla, H.P. information thereof, have the honour to intimate your goodself the latest status of faculty position in the Department of Radiology, I.G.M.C. Shimla H.P. is as under:- (I.G. medical College, Shimla) Sl. Name of MCI, Sanctioned In position vacant Remarks the Post. Requirement if any 1. Professor 1 3 2 1 - 2. Assoc. Prof. 2 2 Nil 2 - 3. Asstt. Prof. 3 3 3 Nil 4 posts of Asstts. Prof. Name of MCI, Sanctioned In position vacant Remarks the Post. Requirement if any 1. Professor 1 3 2 1 - 2. Assoc. Prof. 2 2 Nil 2 - 3. Asstt. Prof. 3 3 3 Nil 4 posts of Asstts. Prof. are re-designated in the depart- ment. 2. Assoc. Prof. 1 2 1 1 - 3. Asstt. Prof. 2 2 2 Nil - However, at present one post of Professor and two posts of Associate Professors are lying vacant in the Department of Radiology, I.G.M.C. Shimla. Therefore, one senior most Asstt. Prof. will be eligible and promoted on completion of a normal period as required under MCI norms by December 2011. Similarly one post of Associate Professor will be filled up likewise and the resultant post shall be filled up through the eligible Sr. residents as the case may be. Even though one post of Professor and one Associate Professor may remain vacant. In view of the patients care system the Government may adjust/downgrade the post of one Professor and one Associate Professor owing to the very fact that there will be no one (candidate) eligible in the near future.” 10. This proposal was dealt with from note Nos. 85 to 111. The matter was sent to the Finance Department. The Finance Department on 30.11.2011 advised the matter to be placed before the Council of Ministers. The Hon’ble Chief Minister vide note No. 100 directed the matter to be placed before the Cabinet. The Secretary (Health) on 14.2.2012 has specifically mentioned that the Director Medical Education and Research was yet to submit a comprehensive proposal for rationalization of posts of teaching faculty in both the Medical Colleges, therefore, in the interim the proposal for downgrading of posts in the Department of Radiology and Skin & VD was to be taken to the Cabinet due to impeding visit of the Medical Council of India. The Cabinet approved the proposal on 15.2.2012. 11. Principal stand taken by the respondent-State in the reply is that the decision to downgrade the posts in the Department of Radiology and Skin & VD has been taken in the patient care service. The court had passed the following order on 24.9.2012: “The respondent-State is directed to produce the entire record to show why one post of Professor in Radiology Department have been downgraded vide notification dated 28th February, 2012. The court had passed the following order on 24.9.2012: “The respondent-State is directed to produce the entire record to show why one post of Professor in Radiology Department have been downgraded vide notification dated 28th February, 2012. The respondent- State is also directed to file a supplementary affidavit that how many times, the posts of Professor and Assistant Professor in Radiology Department were advertised to be filled up by way of direct recruitment, if the eligible candidates were not available from the feeder categories for promotion, by next date. List on 1st October, 2012.” 12. The Principal Secretary (Health) has filed the supplementary affidavit at page 182 of the paper-book. According to the supplementary affidavit, the main reason to downgrade the posts is that a request from the Director Medical Education and Research, H.P. Shimla dated 15.11.2011 was received, who suggested that in the absence of eligible candidates for the post of Professor and Associate Professor, it would be appropriate to down grade these posts. It was categorically admitted in the supplementary affidavit that in case no candidate is available from promotion then posts could be filled up through direct recruitment. However, in view of the ban on direct recruitment, in the interest of patient care services the matter was taken to the Cabinet for down grading the posts. It was also stated in the supplementary affidavit that resorting to filling up the posts by direct recruitment blocks the promotional avenues of cadre of GDOs as such that method is generally not adopted and the candidates to the posts of Professors and Associate Professors are generally not available from direct category. 13. Petitioners have filed reply to the supplementary affidavit placing on record an advertisement dated 2.6.2011 whereby applications were invited for filling up the posts in different departments, including Health Department. The Court had further directed the respondent-State to file supplementary affidavit on 10.10.2012 to the following effect: “In sequel to the previous order, supplementary affidavit has been filed by the Principal Secretary (Health) to the Government of Himachal Pradesh. It is categorically stated in para 1 that in case no candidate is available for promotion then posts could be filled up through direct recruitment. However, in view of the ban on direct recruitment, in the interest of patient care services the matter was taken to the Cabinet for down grading these posts. It is categorically stated in para 1 that in case no candidate is available for promotion then posts could be filled up through direct recruitment. However, in view of the ban on direct recruitment, in the interest of patient care services the matter was taken to the Cabinet for down grading these posts. The petitioners have also placed on record a copy of Advertisement No.III/2011 dated 2nd June 2011 whereby applications were invited for filling up 27 posts of Assistant Professors, including one post of Associate Professor (Forensic Medicine) at page 194 of the paper book. The averments contained in the supplementary affidavit are at variance with the advertisement dated 2.6.2011. The respondent-State is directed to file better affidavit, explaining if there was a ban, how these posts have been advertised on 2nd June 2011 on or before the next date of hearing. The respondent-State shall also place on record a copy of the notification, if any, issued for banning the direct recruitment. List on 15th October, 2012.” 14. The supplementary affidavit was filed by the Principal Secretary (Health) at page 204 of the paper-book on 12.10.2012. It is stated in the supplementary affidavit that the post of Associate Professor was advertised on 2.6.2011 alongwith 27 posts of Assistant Professors of direct recruitment quota after taking approval of the Council of Ministers for I.G.M.C. Shimla and Dr. R.P.G.M.C. Tanda. There is a reference to the notification dated 6.9.1995 whereby complete ban was imposed for filling up the posts by way of direct recruitment. Notifications were also issued on 8.7.1998 and 13.6.2007. According to the supplementary affidavit, the ban implies that for filling up any post of direct recruitment quota, the matter has to be placed before the Council of Ministers after concurrence of Finance Department for relaxation of the ban. The Court had further directed the respondent-State to file supplementary affidavit on 15.10.2012 to the following effect: “The supplementary affidavit stands filed. But the Court is not satisfied with the contents of the same. The Court had further directed the respondent-State to file supplementary affidavit on 15.10.2012 to the following effect: “The supplementary affidavit stands filed. But the Court is not satisfied with the contents of the same. The Principal Secretary (Health) is directed to file a batter affidavit whether the process for filling up the posts of Associate Professors and Professors in the department of Radiology was ever initiated and the matter was ever taken to the Cabinet for relaxation which has been sought for filling up 27 posts of Associate Professors by way of direct recruitment, on or before the next date of hearing. List on 7.11.2012.” 15. According to the averments contained in the supplementary affidavit, it is not a normal practice to fill up posts meant for promotional quota by resorting to direct recruitment since it adversely affects the promotional avenue of existing Government functionaries and secondly the process is time consuming and ordinarily permission is not given by the Finance Department. It is also stated in the supplementary affidavit that it is difficult to get suitable candidates even for the post of Assistant Professor. The following averment has been made in the supplementary affidavit: “In view of the above, the matter regarding filling up of posts of Associate Professor and Professor in the Department of Radiology by direct recruitment was not taken up with the Cabinet.” 16. The proposal was considered by the Department, as noticed above, and it was decided to down grade 14 posts of Professors and Associate Professors in I.G.M.C. Shimla and R.P.M.G.C. Tanda. The fact of the matter is that this proposal was turned down by the Finance Department. The respondent-State instead of closing the matter at this stage, sought department-wise details of the faculty members required as per norms for 100 MBBS/PG seats for both the colleges on 1.11.2011. In the meantime, the proposal to down grade the post of Associate Professor to Assistant Professor in the Department Skin & VD has been taken at the instance of respondent No.5. Respondent No.5 has been designated as Assistant Professor. The post of Assistant Professor is to be filled up strictly as per Recruitment and Promotion Rules notified in the year 1999. Respondent-State has not placed any Rules or Regulations or instructions under which respondent No.5 was designated as Assistant Professor. Respondent No.5 has been designated as Assistant Professor. The post of Assistant Professor is to be filled up strictly as per Recruitment and Promotion Rules notified in the year 1999. Respondent-State has not placed any Rules or Regulations or instructions under which respondent No.5 was designated as Assistant Professor. Department-wise details were though awaited, the Director Medical Education and Research sent a letter to the Secretary (Health) on 15.11.2011 to down grade two posts of Professor and Associate Professor to Assistant Professor in the Department of Radiology. How this decision has been taken suddenly by the Director Medical Education and Research to down grade the posts is not borne out from the records. Why he has restricted it to the Department of Radiology is also not substantiated. The Director Medical Education and Research knew that the department-wise details have been sought from all the faculties and despite that he had the audacity to move the case to down grade the posts in Radiology Department on 15.11.2011. The Finance Department has though agreed to the proposal but has shown its reservation that in future no proposal should be made. It is in these circumstances that the matter was ordered to be placed before the Cabinet on 6.1.2012. The Secretary (Health) knew that the Director Medical Education and Research was yet to submit a comprehensive proposal for rationalization of posts of teaching faculty in both the Medical Colleges, thus, in the interim it was proposed to downgrade two posts in the Department of Radiology and one post in Skin & VD in view of impeding visit of the Medical Council of India. The Cabinet has accorded approval on 15.2.2012. The Director Medical Education and Research has no authority to scuttle the process by not supplying the department-wise details of the faculty members as per note No. 84 dated 1.11.2011 and the matter was required to be brought to the notice of the Cabinet by the Secretary Health that the department-wise details of faculty members have not been received. It is for the State Government to abolish or down grade or upgrade the posts. It rather falls in the realm of policy. However, while taking administrative decision, the norms prescribed have to be followed. There should not be any arbitrariness or unreasonableness. It is for the State Government to abolish or down grade or upgrade the posts. It rather falls in the realm of policy. However, while taking administrative decision, the norms prescribed have to be followed. There should not be any arbitrariness or unreasonableness. The policy decisions cannot be taken de hors the Recruitment and Promotion Rules, which are framed under Article 309 of the Constitution of India. 17. The posts of Associate Professor and Professor are to be filled up 100% by promotion failing which by direct recruitment. It is true that the petitioners, as on today, are not eligible to be considered for the posts of Associate Professor and Professor in the Department of Radiology. In view of this, steps were required to be taken for filling up the posts of Associate Professors and Professor by way of direct recruitment. Respondent-State has not taken any steps to fill up these posts by way of direct recruitment. Stand of the respondent-State is contrary to the Recruitment and Promotion Rules. The posts of Professor and Associate Professor were required to be advertised at the first instance. If despite advertisement being issued, no candidate was available to be considered for the post of Professor/Associate Professor by way of direct recruitment, the posts could be down graded. Respondent-State has also stated in the supplementary affidavit that generally the posts are not filled up by way of direct recruitment in order to ensure that there is no impediment in the promotional avenues of the Teachers serving in the College. However, in the instant case, whatever chances the petitioners had to be promoted to the post of Professor and Associate Professor have been obliterated for all times to come by the respondent-State by down grading the posts of Associate professor and Professor. One of the petitioners is working as Associate Professor and was bound to be considered after complying with the Recruitment and Promotion Rules for the post of Professor. The Assistant Professor was also required to be considered strictly as per Rules as and when he fulfils the requisite criteria provided under the Rules for promotion to the post of Associate Professor. 18. Respondent-State has already decided to fill up 27 posts of Assistant Professor and one post of Associate Professor, as per advertisement issued on 2.6.2011. The Assistant Professor was also required to be considered strictly as per Rules as and when he fulfils the requisite criteria provided under the Rules for promotion to the post of Associate Professor. 18. Respondent-State has already decided to fill up 27 posts of Assistant Professor and one post of Associate Professor, as per advertisement issued on 2.6.2011. Why the posts of Assistant Professor/Associate Professor have not been advertised to be filled up by direct recruitment in the Department of Radiology and Skin & VD has not been explained. The matter was required to be placed before the Council of Minister for relaxation of ban for filling up the posts by way of direct recruitment. In the case in hand, the matter has never been taken by the State Government for approval before the Cabinet to fill up the posts of Associate Professor and Professor in the Department of Radiology and Skin & VD. There must be consistency and transparency the manner in which the decisions are taken. In case the decision has been taken to fill up 27 posts of Assistant Professor and one post of Associate Professor, on the same analogy, the decision ought to have been taken to fill the posts of Associate Professor and Professor in the Departments of Radiology and Skin & VD. The Director Medical Education and Research could not state in the communication addressed to the Secretary (Health) that the eligible candidates are not available without exploring the possibilities of filling up these posts by way of direct recruitment. The Principal Secretary (Health) has also stated in his affidavit that generally the process for filling up the posts is time consuming and the Finance Department does not give the permission. However, suffice it to say that in this case, there was no proposal even to fill up the posts of Associate Professor and Professor by way of direct recruitment. In case the proposal had been prepared, the same should have been processed the manner in which decision has been taken to fill up 27 posts of Assistant Professors and one post of Associate Professor as per advertisement dated 2.6.2011. 19. The plea of the respondent-State that the decision has been taken also to down grade the posts taking into consideration the workload in the Radiology Department merits rejection. 19. The plea of the respondent-State that the decision has been taken also to down grade the posts taking into consideration the workload in the Radiology Department merits rejection. The Director Medical Education and Research should have taken into consideration the workload in each and every Department instead of singling out the Department of Radiology. The ratio of teachers vis-à-vis students in the Medical Colleges is required to be maintained as per Medical Council of India norms. 20. The Constitution Bench in N. Ramanatha Pillai versus The State of Kerala and another, AIR 1973 SC 2641 has held that a post may be abolished in good faith and the order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311 (2) of the Constitution of India. The Constitution Bench has held as under: “14. The first question which falls for determination is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public. 23. A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, male fide or as a mask of some penal action within the meaning of Article 311 (2).” 21. The Apex Court in Sakal Deep Sahai Srivastava versus Union of India and another, (1974) 1 SCC 338 has held that the order abolishing the post of Office Superintendent was passed with oblique motive and was not a bona fide order and could be ignored because even administrative action should be honest and bona fide. The Apex Court has held as under: “6. The Apex Court has held as under: “6. It, therefore, appears to us that the High Court had taken the view that the action against the appellant, being penal and violative of the constitutional protection afforded by Section 240 (3) Government of India Act, was void, and, therefore, could be ignored as "non est". Similarly, the order abolishing the post of Office Superintendent, having been passed with an oblique motive, was not a bona fide order so that it could be ignored. Even administrative action, to be valid, has to be honest and bona fide. On these findings, the High Court appears to us to have been justified in giving the declaration it did give.” 22. The Apex Court in State of Haryana versus Shri Des Raj Sangar and another, (1976) 2 SCC 844 has held that where a post should be retained or abolished is essentially a matter for the Government to decide and as long as such decision of the Government is taken in good faith, the same cannot be set aside by the Court. However, the decision to abolish the post be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The Apex Court has held as under: “7. Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Art 311. In Ramanatha Pillai v. State of Kerala. (1974) 1 SCR 515 =( AIR 1973 SC 2641 ). Ray C J speaking for the Constitution Bench of this Court observed; "A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2)." It was further observed: "The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servants. The abolition of post is an executive policy decision, Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." 23. The Apex Court in K. Rajendran and others versus State of Tamil Nadu and others, (1982) 2 SCC 273 has held that abolition of post can be effected in good faith as a policy decision in the interest of administrative efficiency. The Apex Court has further held that an action executive or legislative is, however, subject to judicial review and court can interfere with it if found to be a cloak for dispensing with the services of the incumbents. The Apex Court has further held that an action executive or legislative is, however, subject to judicial review and court can interfere with it if found to be a cloak for dispensing with the services of the incumbents. The Apex Court has held as under: “12. The power to abolish a civil post is inherent in the right to create it. The Government has always the power, subject, of course, to the constitutional provisions, to re-organise a department to provide efficiency and to bring about economy. It can abolish an office or post in good faith. The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent. We have the following statement of the law in American Jurisprudence 2d, Vol. 63 at pages 648-649 : "37. Manner, sufficiency, validity, and effect. It is not always easy to determine whether a public office has been abolished. It is not sufficient merely to declare that a particular office is abolished, if in fact it is not abolished, and the duties thereof are continued. An office is abolished when the act creating it is repealed. But the repeal of the statute creating an office, accompanied by the re-enactment of the substance of it, does not abolish the office. Abolition of an office may also be brought about by a constitutional provision, or by a new constitution or a constitutional amendment. A non-constitutional office may be indirectly abolished as by legislating away the duties and emoluments of the office. The legislature may not evade constitutional provisions by a sham or pretended abolition of an office, as where there is a mere colorable abolition of the office for the purpose of getting rid of its incumbent. This may happen where an office is abolished in terms and promptly recreated under the same or a different name, provided the legislature does not attach duties and burdens to the new office of a character such as to make it in reality a different office. This may happen where an office is abolished in terms and promptly recreated under the same or a different name, provided the legislature does not attach duties and burdens to the new office of a character such as to make it in reality a different office. Where an office is duly abolished by the legislature or the people, it ceases to exist and the incumbent is no longer entitled to exercise the functions thereof, or to claim compensation for so doing, unless he is under contract with the state so as to come within the protection of the constitutional inhibition against impairment of the obligation of contract Since a de jure office is generally essential to the existence of a de facto officer, persons cannot act as de facto officers of an office which has been abolished." 30. The question whether Art. 311 (2) would be contravened if a Government servant holding a civil post substantively lost his employment by reason of the abolition of the post held by him directly arose for consideration before this Court in Ramanatha Pillai v. State of Kerala (1974) 1 SCR 515 : ( AIR 1973 SC 2641 ). Two points were examined in that case (i) whether the Government had a right to abolish a post in a service and (ii) whether abolition of a post was dismissal or removal within the meaning of Article. 311 of the Constitution. The Court held that a post could be abolished in good faith but the order abolishing the post might lose its effective character if it was established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of` Article. 311 (2). 311 of the Constitution. The Court held that a post could be abolished in good faith but the order abolishing the post might lose its effective character if it was established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of` Article. 311 (2). After considering the effect of the decisions in Parashotam Lal Dhingra's case ( AIR 1958 SC 36 ) (supra); Champaklal v. Union of India (1964) 5 SCR 190 : ( AIR 1964 SC 1854 ); Moti Ram Deka's case ( AIR 1964 SC 600 ) (supra); Satish Chandra v. Union of India, 1953 SCR 655 : ( AIR 1953 SC 250 ) and Shyam Lal v. State of U. P. (1955) 1 SCR 26 : ( AIR 1954 SC 369 ), this Court observed in this case at page 526 (of SCR) : (At p. 2649 of AIR) thus : "The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Art. 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of Post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." 32. The above view was followed by this Court in State of Haryana v. Des Raj (1976) 2 SCR 1034 : ( AIR 1976 SC 1199 ) to which one of us (Murtaza Fazal Ali, J.) was a party. Khanna, J. speaking for the Court observed at pp. 1037-38 (of SCR) : (at P. 1202 of AIR) thus : "Whether a post should be retained or abolished is essentially a matter for the Government to decide, As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. Khanna, J. speaking for the Court observed at pp. 1037-38 (of SCR) : (at P. 1202 of AIR) thus : "Whether a post should be retained or abolished is essentially a matter for the Government to decide, As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Art. 311." 33. Before concluding our discussion on this topic, it is necessary to refer to a decision of the Jammu and Kashmir High Court in Abdul Khalik v. State of Jammu and Kashmir, AIR 1965 J&K 15 (FB) to which one of us (Murtaza Fazal Ali. J. (as he then was)) was a party in which the validity of the abolition of posts constituting the special police squad of the State of Jammu and Kashmir was questioned. In that case, the High Court while recognising the power of the State Government to abolish the posts and to terminate the services of the incumbents of such posts held that such action could be validly taken only subject to certain safeguards and in the absence of any such safeguards the abolition was bad. The High Court did not clearly spell out the nature and extent of safeguards referred to therein. The High Court did not clearly spell out the nature and extent of safeguards referred to therein. The High Court relied on the words 'subject to certain safeguards, on the abolition of posts' in the passage occurring at p. 841 (of SCR) : (at p. 42 of AIR) in Parshotam Lal Dhingra's case ( 1958 SCR 828 ) : ( AIR 1958 SC 36 ) (supra) which is extracted abovel to reach the conclusion that unless the abolition of posts was accompanied by such safeguards, Art. 311 would be infringed With respect, it should be stated that the High Court did not notice that in another passage at pages 857-858 (of SCR) : (at pp. 47 and 48 of AIR) in the same decision, which is also extracted above, the abolition of posts referred to therein was unqualified. In this passage there is no reference to any safeguards at all. Probably the 'safeguards' referred to in the passage at page 841 (of SCR) : (at p. 42 of AIR) in Parshotam Lal Dhingra's case (supra) meant an abolition of posts which was in good faith and not a pretence abolition of a post resorted to in order to get rid of its incumbent and the creation of the same post with a different form or name with a new incumbent. The above view of the High Court of Jammu and Kashmir is, however, in conflict with the decision in Ramanatha Pillai's case ( AIR 1973 SC 2641 ) (supra) and hence must be considered as having been overruled by this Court. In modern administrations, it is necessary to recognise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil service of the State. The volume of administrative work, the measures of economy and the need for streamlining the administration to make it more efficient may induce the State Government to make alterations in the staffing patterns of the civil service necessitating either the increase or the decrease in the number of posts. This power is inherent in the very concept of governmental administration. To deny that power to the Government is to strike at the very roots of proper public administration. The power to abolish a post which may result in the holder thereof ceasing to be a Government servant has got to be recognised. This power is inherent in the very concept of governmental administration. To deny that power to the Government is to strike at the very roots of proper public administration. The power to abolish a post which may result in the holder thereof ceasing to be a Government servant has got to be recognised. But we may hasten to add that any action legislative or executive taken pursuant to that power is always subject to judicial review.” 24. The power of Government in abolishing a post and role of the court for interference has been summarized by the Apex Court in State of Haryana and others versus Navneet Verma, (2008) 2 SCC 65 as under: “17. We summarize the power of government in abolishing a post and role of the court for interference: (a) the power to create or abolish a post rests with the government; (b) whether a particular post is necessary is a matter 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 this power in the 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 malafide, 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. With the above principles, let us consider whether the abolition of the posts of Accounts Executives are justified and consequential order of termination terminating the respondent-herein from the said post is sustainable.” 25. The Apex Court in Official Liquidator versus Dayanand and others, (2008) 10 SCC 1 has held that the creation or abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. The Apex Court in Official Liquidator versus Dayanand and others, (2008) 10 SCC 1 has held that the creation or abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer and 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 mala fides. 26. The Division Bench of Punjab and Haryana High Court in Prem Chand, Naib Tehsildar and others versus The State of Haryana and others, 1989 (2) S.L.R. 556 has held that abolition of post in order to disentitle a person to continue on the post shall be functional abolition and not an abolition of post simplicit while the functions are still to be performed by some one or the other under different designations. The post cannot be abolished as a device to terminate the services. The Division Bench has held as under: “The Government creates posts, determines its cadres and fix its pay scales. The posts are created, persons appointed to the posts for the purposes of carrying out Governmental functions. The sovereign functions of the Government are never functionally abolished or could be abolished. Certain statutory functions vest in the Government and for the purpose of carrying out those functions, the posts are created. They may be called civil posts under the Statute. The statute may be repealed and the functions may be taken out or abolished, then there is no need for the post and the post is abolished. If the post is functionally abolished the person holding the post gets no right and his services would stand terminated, but the case of sovereign functions, they are always there and they cannot be abolished and the post created for carrying out those functions can never be abolished though the number of posts may be reduced or increased or there may be change in the pay scale and other service conditions. Even if in a particular cadre, for some reason or the other, the number of posts are reduced, on that ground the services cannot be terminated on abolition of posts because the governmental functions are still there and had to be carried out and the incumbents cannot be sent out as the functions had to be carried out along with others. The sovereign functions cannot be equated to those in commercial establishments.” 27. Respondent No.5 has made the representation to Hon’ble the Chief Minister seeking downgrading of the post of Associate Professor to Assistant Professor and to fill up the same by way of promotion. There was neither any administrative nor any public interest involved in this request. It was made for personal promotion. Similarly, letter dated 15.11.2011 addressed by the Director Medical Education and Research to the Secretary (Health) does not talk of any public interest except that for the post of Professor and Associate Professor in the Department of Radiology, no candidates were eligible for promotion. The Director while addressing this letter to the Secretary (Health) has not taken into consideration the Recruitment and Promotion Rules. In case the post could not be filled up by way of promotion, the same was to be filled up by direct recruitment at the first instance. The exercise to down grade the post is actuated with bad faith and is also due to legal and factual mala fides. The Director Medical Education and Research has not mentioned that the posts may be down graded in order to provide better patient services care. This ground has been mentioned only in the reply filed to the petition. It is also apparent that the decision now has been taken to downgrade the post not for patient health services but has been taken only due to impeding visit of Medical Council of India as per note dated 14.2.2012 of the Secretary (Health). Reasons ought to have been given while deciding to down grade the post of Professor and Associate Professor to the post of Assistant Professor in the Department of Radiology and from the post of Associate Professor to the post of Assistant Professor in the Department of Skin & VD. It is also surprising to note that respondent No.5 instead of moving an application through proper channel has approached the Hon’ble Chief Minister directly. It is also surprising to note that respondent No.5 instead of moving an application through proper channel has approached the Hon’ble Chief Minister directly. Any employee should make a representation for the redressal of his grievance to the administrative department and thereafter to the higher authorities. 28. The posts are required to be filled up strictly as per the Recruitment and Promotion Rules. The tendency of the State to alter the cadre strength and to designate the posts due to impeding visit of the Medical Council of India will deteriorate the academic excellence in the Medical Colleges and this tendency is required to be curbed. There has to be consistency in the stand of the respondent-State. The pleadings made must be supported by official records. There has to be transparency and fairness in the decision making process. The decision taken even on administrative side must be supported by reasons. Reason assigned suggests due application of mind. Decisions must be taken in larger public interest and not to give benefit to a particular person or group of persons at the peril of public interest. 29. Accordingly, in view of the observations and analysis made hereinabove, the writ petition is allowed. Annexure P-3 dated 28.2.2012 is quashed and set aside. There shall, however, be no order as to costs. Pending application(s), if any, also stands disposed of. No costs. 30. The Registrar General of this Court is directed to send a copy of the judgment to the Medical Council of India.