In a significant ruling, the Punjab & Haryana High Court has held that the creation or abolition of promotional posts by a competent authority does not constitute a violation of fundamental rights. The judgment was delivered by Justice Jagmohan Bansal in the case of Anuradha v. Union of India and Others (CWP-4728-2024).
Background of the Case
The petitioner, Anuradha, an Assistant Sub-Inspector (ASI) with the Border Security Force (BSF), challenged a notification dated February 1, 2024, which revised the strength of various cadres, including the Pharmacist cadre. The revised cadre strength resulted in the reduction of 72 ASI posts and 4 Sub-Inspector posts, while increasing the number of Inspector and Subedar Major posts.
Legal Issues Involved
Anuradha contended that the reduction in the number of Sub-Inspector posts adversely affected her promotional avenues, thereby violating her fundamental rights under Articles 14 and 16 of the Constitution of India. She argued that the right to be considered for promotion is a fundamental right and that the abolition of posts would stigmatize her and cause disrepute.
On the other hand, the Union of India, represented by Senior Panel Counsel Mr. Narender Kumar Vashisht, argued that the creation and abolition of posts fall within the exclusive domain of the employer/State. The courts, they contended, cannot interfere with such decisions unless there is a clear violation of constitutional or statutory provisions or manifest illegality.
Court’s Decision
Justice Jagmohan Bansal, after hearing arguments from both sides and reviewing the records, dismissed the petition. The court reiterated that the creation and abolition of posts are matters within the employer’s discretion and that judicial intervention is warranted only in cases of patent illegality, arbitrariness, or violation of statutory provisions.
The court cited the Supreme Court’s judgment in Official Liquidator v. Dayanand and Others (2008) and other precedents, emphasizing that the power to create or abolish posts rests with the government and is a matter of administrative necessity and policy.
Important Observations
Justice Bansal made several key observations in his judgment:
1. Domain of Employer: “The creation and abolition of posts, formation and structuring/restructuring of cadres fall within the exclusive domain of 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.”
2. Judicial Review: “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.”
3. Impact on Promotional Avenues: “The increase in posts of Subedar Major and Inspector would ultimately be in her benefit because she will get more opportunities to get promotion. The mere fact that there is a reduction in 4 posts of Sub-Inspector is not going to substantially affect her rights.”
4. Fundamental Right to Promotion: “A person has the right to be considered for promotion against a post. If the Competent Authority has 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.”
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Conclusion
The court concluded that there was no manifest illegality or arbitrariness in the impugned notification and dismissed the petition. This ruling underscores the principle that the creation and abolition of posts are administrative decisions that fall within the purview of the employer, and courts should exercise caution in interfering with such decisions unless there is a clear violation of legal principles.
