Abolition Or Creation Of Promotional Post By Competent Authority Does Not Violate Candidate's Fundamental Right To Be Considered For The Said Post: Punjab & Haryana HC
The Punjab & Haryana High Court ruled that if the competent authority created or abolished a promotional post, the Court cannot hold that there is a violation of the fundamental right of the candidate to be considered for the said post.
It said that the notification issued by the competent authority cannot be set aside or modified by the Court unless and until, it is found that there is a violation of fundamental rights or it is contrary to statutory provisions or there is patent/manifest illegality.
The Court was hearing a petition under Article 226 of the Constitution of India seeking to set aside the notification dated February 01, 2024, whereby the respondent Union of India has revised the strength of different cadres including pharmacists.
The bench of Justice Jagmohan Bansal observed, “If the Competent Authority has created or abolished a promotional post, the Court cannot hold that there is violation of fundamental right of the candidate to be considered for the said post.”
Advocate Sagar Saxena appeared for the Appellant and Sr. Panel Counsel Narender Kumar Vashisht appeared for the Respondent.
The Petitioner Anuradha is posted with BSF as Assistant Sub-Inspector. She joined the force in 2014. The respondent by the impugned judgment changed the number of posts of pharmacists cadre and it was seen that that respondent has reduced 72 posts of ASI and 4 posts of Sub-Inspector whereas 4 posts of Inspector and 11 posts of Subedar Major have been increased. The petitioner is assailing notification issued by a Competent Authority.
The Court mentioned the decision of the three-Judge Bench of the Supreme Court in ‘Official Liquidator Vs. Dayanand and others, 2008 (10) SCC 1, where the SC has categorically held that the creation and abolition of posts, formation and structuring/re-structuring of cadres falls within the domain of the employer.
The Court quoted, “The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation.”
The Court said that the respondent as per its wisdom has abolished a few posts of the rank of Assistant Sub-Inspector and Sub-Inspector while increasing the rank of Inspector and Subedar Major.
While noting that the increase in posts of Subedar Major and Inspector would ultimately be to Petitioner’s benefit because she will get more opportunities to get promotion the Court said, “The mere fact that there is reduction in 4 posts of Sub- Inspector is not going to substantially affect her rights. In any case, if two persons are not granted equal opportunity to participate for the purpose of promotion, there can be violation of fundamental right.”
Accordingly, the Court said that the Court does not find any manifest illegality or arbitrariness in the impugned notification warranting interference.
Finally, the Court dismissed the Petition.
Cause Title: Anuradha v. Union of India (Neutral Citation: 2024:PHHC:059731)
Appearance:
Appellant: Adv. Sagar Saxena and Adv. Divij Datt
Respondent: Sr. Panel Counsel Narender Kumar Vashisht