Punjab-Haryana High Court
Ashish Kumar vs Joint Secretary (T), Government Of ... on 10 April, 2024
Neutral Citation No:=2024:PHHC:048972
CWP-23314-2016 -1- 2024:PHHC:048972
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
107 CWP-23314-2016
Date of Decision : 10.04.2024
ASHISH KUMAR ... PETITIONER
Versus
JOINT SECRETARY (T), GOVERNMENT OF INDIA, MINISTRY OF
HUMAN RESOURCE DEVELOPMENT AND ORS
... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr.Aditya Yadav, Advocate
for the petitioner.
Mr. Aman Dhir, DAG, Punjab.
Mr. Vivek Singla, Advocate
for respondents No.3 and 4.
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227 of the
Constitution of India is seeking directions to the respondents to appoint him on
the post of Assistant Professor.
2. The petitioner pursuant to advertisement dated 10.10.2014 applied
for the post of Assistant Professor in the Chemical Engineering Department of
respondent-Institute. He was found at Sr. No.7 in the selection list dated
29.01.2016 and at Sr. No.3 in his category i.e. OBC. The respondent after
conducting process selected one candidate who was at Sr. No.1 and belonged to
OBC Category. The petitioner was at Sr. No.3 in OBC Category. As per
respondent, there was no other vacancy, thus, petitioner could not be selected.
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3. Mr. Aditya Yadav, Advocate submits that at the time of
advertisement, vacancy was available and petitioner was found eligible. At the
time of advertisement, he was working with respondent on contract basis. The
respondent could not reduce number of vacancies. The action of respondent was
arbitrary and unreasonable, thus, violative of Articles 14 and 19 of Constitution
of India. The respondent in 2019 again advertised the post which indicates that
vacancy was available.
4. Per contra, Mr. Vivek Singla, Advocate submits that the petitioner
was at Sr. No.3 in OBC Category. Only one vacancy was available which was
filled up from OBC Category candidates. The candidate at Sr.No.1 was
selected. In the absence of vacancy, the petitioner could not be selected.
5. I have heard the arguments of learned counsel for the parties and
perused the record.
6. A three Judge Bench of Supreme Court in Official Liquidator vs.
Dayanand and others, 2008 (10) SCC has held that Courts cannot ask State to
create or abolish any post or cadre. The relevant extracts of the judgment read
as :
"59. The creation and 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. 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
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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.
60. In State of Haryana v. Navneet Verma [(2008) 2 SCC 65 :
(2008) 1 SCC (L&S) 373] , a Division Bench of two Judges
referred to M. Ramanatha Pillai v. State of Kerala [(1973) 2 SCC
650 : 1973 SCC (L&S) 560] , Kedar Nath Bahl v. State of
Punjab [(1974) 3 SCC 21] , State of Haryana v. Des Raj
Sangar [(1976) 2 SCC 844 : 1976 SCC (L&S) 336] , N.C. Singhal
(Dr.) v. Union of India [(1980) 3 SCC 29 : 1980 SCC (L&S) 269]
and Avas Vikas Sanghathan v. Engineers Assn. [(2006) 4 SCC 132
: 2006 SCC (L&S) 613] and culled out the following principles:
(Navneet Verma case [(2008) 2 SCC 65 : (2008) 1 SCC (L&S)
373] , 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
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 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."
61. In State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 :
2006 SCC (L&S) 753] the Constitution Bench adverted its
attention to financial implications of creation of extra posts and
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held that the courts should not pass orders which impose
unwarranted burden on the State and its instrumentalities by
directing creation of particular number of posts for absorption of
employees appointed on ad hoc or temporary basis or as daily
wagers.
62. In Aravali Golf Club v. Chander Hass [(2008) 1 SCC 683 :
(2008) 1 SCC (L&S) 289] also, a two-Judge Bench considered the
issue relating to creation of posts and held: (SCC p. 688, para 15)
"15. 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. This Court has
time and again pointed out that the creation of a post is an
executive or legislative function and it involves economic
factors. Hence the courts cannot take upon themselves the
power of creation of a post. Therefore, the directions given
by the High Court and the first appellate court to create
the posts of tractor driver and regularise the services of the
respondents against the said posts cannot be sustained and
are hereby set aside."
7. In the case in hand, the petitioner participated in the selection
process. He was found at Sr. No.3 in the OBC Category. There were total 05
posts of Assistant Professor in Chemical Engineer and only one vacancy was
available at the time of recruitment. The respondent recruited candidate who
was at Sr. No.1 in OBC Category. This Court cannot ask the respondent to fill
up vacancy which was not available with respondent. Mere participation or
finding eligible by recruitment board does not create absolute or vested right in
any candidate.
8. The petitioner is claiming that recruitment process also took place
in 2019 which indicates that vacancy was available. The petitioner was not
precluded to participate in the said selection process. It is prerogative of the
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State-employer to fill up posts as and when vacancy arises. The Court cannot
determine time, mode and manner of vacancy. This Court does not find that by
not selecting petitioner, the respondent has violated any vested or fundamental
right of the petitioner warranting interference of this Court.
9. Dismissed.
(JAGMOHAN BANSAL)
JUDGE
10.04.2024
anju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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