JUDGMENT :

Jagmohan Bansal, J.

The petitioner through instant petition under Article 226 of the Constitution of India is seeking setting aside of notification dated 01.02.2024 (Annexure P-1) whereby respondent has revised strength of different cadres including Pharmacist.

2. The petitioner, at present is posted with BSF as Assistant Sub-Inspector. She joined the force in 2014. The strength of Pharmacist cadre prior to February' 2024 was as below:

3. The respondent by impugned notification dated 01.02.2024 (Annexure P-1) has changed number of posts of aforesaid cadre. The revised strength as per aforesaid notification is as below:

4. From the perusal of revised cadre strength, it comes out 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.

5. Mr. Sagar Saxena, Advocate submits that respondent has wrongly revised cadre strength. The abolition of 4 posts of Sub Inspector is going to adversely affect her promotional avenues. The right to be considered for promotion is a fundamental right and abolition of 4 posts is going to violate her fundamental rights guaranteed by Articles 14 and 16 of the Constitution of India. There are possibilities that persons who have joined as Sub-Inspector or Assistant Sub-Inspector alongwith petitioner, however, in other cadres may be promoted prior to her. It would be stigmatic and cause dis-repute to her.

6. Per contra, Mr. Narender Kumar Vashisht, Sr. Panel Counsel submits that it is a settled proposition of law that question of creation and abolition of posts falls within domain of employer/State. The Courts can neither create nor abolish posts or ask the authorities to create or abolish posts.

7. I have heard the arguments of both sides and with the able assistance of learned counsels have perused the record.

8. The petitioner is assailing notification issued by a Competent Authority. The notification cannot be set aside or modified by Court unless and until, it is found that there is violation of fundamental rights or it is contrary to statutory provisions or there is patent/manifest illegality.

A three Judge Bench of Supreme Court in 'Official Liquidator Vs. Dayanand and others', 2008 (10) SCC 1, has categorically held that creation and abolition of posts, formation and structuring/re-structuring of cadres falls within domain of employer. The relevant extracts of the judgment are reproduced as below:

"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 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.

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 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