1. Dispute regarding appointment by transfer to a Deputy Director post and a Tribunal's direction to create a cadre post and prescribe minimum experience for advancement. (Para 2 )
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1996 Supreme(SC) 1893
1996(8) Supreme 561
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Commissioner, Corporation of Madras -Appellant
versus
Madras Corporation Teachers Mandram & Ors. -Respondents
Civil Appeal No. 15074-15075 of 1996
(Arising out of SLP (C) No. 4385-86 of 1996)
Decided on 8-11-1996
Counsel for the Parties :
For the Appellant : R. Mohan, Sr. Advocate, R. Nedumaran, V.G. Pragasam and Ms. Pushpa Rajan, Advocates.
For the Respondents : Naveen R. Nath and S.R. Bhat, Advocates.
Important Points
IMPORTANT POINT
It is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post and the Court or Tribunal was devoid of power to give such direction.
It is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post and the Court or Tribunal was devoid of power to give such direction.
Subject
Administrative Law - Judicial Review
Act Referred
Headnote
SERVICE LAW-Post of Education Officer upgraded to the post of Deputy Director-Appellant Corporation sought appointment by transfer of a Government officer to fill up the post-It is the legal or executive policy of the Government to create a post or to prescribe qualification for the post-Tribunal was devoid of power to pass direction to create a post or to prescribe the minimum qualifications for the post. (Para 4)
Legal Category Hierarchy
Table of Contents
2. Whether a Tribunal can direct the creation of a post or prescribe qualifications, and whether appointment by transfer affects in-service candidates. (Para 3 , 4 )
3. The creation of posts and prescription of qualifications are matters of executive policy, and Tribunals lack the jurisdiction to issue directions on these matters. (Para 3 , 4 )
4. Courts or Tribunals lack the power to direct the government to create a post or prescribe the qualifications necessary to hold a post. (Para 4 )
5. Appeals allowed; the impugned directions of the Tribunal are declared illegal. (Para 5 )
6. Does a Tribunal have the power to direct the government to create a new post?
No, the creation of a post is a matter of legal or executive policy of the Government. Courts or Tribunals are devoid of power to issue such directions. (Para 4 )
7. Can a Tribunal prescribe the minimum qualifications or experience required for a post?
No, prescribing the qualifications for a post is an executive policy of the Government, and Tribunals lack the power to give such directions. (Para 4 )
ORDER
Leave granted.
2. These appeals by special leave arise against the order of the Administrative Tribunal, Tamil Nadu passed in OA No. 708/93 and 1685/93 on August 2, 1994. The appellant-Corporation had adopted a dual policy of appointment of Education Officers either by promotion from the subordinate cadre or appointment by deputation from the Government Service. It would appear that the post of Education Officer was upgraded to the post of Deputy Director and they sought appointment by transfer of a Government Officer to fill up the post of Deputy Director to supervise the educational standards in the Corporation. The respondents-Union challenged the said action of the appellant in the Tribunal. The Tribunal while upholding the power of the Corporation had directed thus:
"Therefore, a post in the cadre of the Corporation equivalent to the District Educational Officer should be created to which persons from the Corporation s cadre could be appointed and such persons could be considered after a minimum period of experience for advancement to the higher post in the rank of Chief Educational Officer to be in overall charge of the Corporation s Educational Department."
3. Feeling aggrieved against this order, this appeal has been filed. Shri R. Mohan, learned senior counsel for the Corporation, has contended that the creation of the post and prescription of qualifications are the legal policy of the Government or the executive policy of the Government. The Tribunal cannot give the direction to create a post or to prescribe the experience as may be required as an incumbent to hold the post. We find that there is force in the contention.
4. Learned counsel for the respondents, in fairness, was unable to meet the contention but he sought to sustain this order on the ground that appointment by transfer affects in-service candidates. We cannot go into it because it is not the subject matter in this case. Under these circumstances, as stated earlier, the question is: whether the Tribunal can give direction to create a post or to prescribe the minimum qualifications for the post ? It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. The Court or Tribunal is devoid of power to give such direction. The impugned direction, therefore, is clearly illegal.
5. The appeals are accordingly allowed. But in the circumstances without costs.
Appeal allowed.
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