JUDGMENT
S.J. Vazifdar, J.
1. Respondent No. 1 was constituted under the
Bombay Provincial Municipal Corporation Act, 1949. Prior thereto, it was the
Malegaon Municipal Council, a statutory body established under the Maharashtra
Municipalities Act, 1965. Respondent No. 2 is the State of Maharashtra acting
through the Director of Municipal Administration. Respondent No. 3 is the
Regional Director of Municipal Administration and Commissioner, Nashik
Division.
2. The petitioner seeks a writ of certiorari to quash the impugned orders dated 20-10-1986 and 24-64987 passed by the third respondent and the Chief Officer of the first respondent; a writ of mandamus allowing the petitioner to work as Administrative Officer (Health) and for all monetary benefits of the corresponding pay scale and allowances and his proper placement in the seniority list. In the alternative, the petitioner has sought a Writ of Mandamus directing the first respondent to appoint him on any alternative equivalent post to that of the said post of Administrative Officer (Health) if the said post is required to be abolished. By the impugned orders the said post was abolished and the petitioner was reverted to his earlier post.
3. The Medical Officer of Health, (M.O.H.) Malegabn Municipal Council, by his report dated 5-2-1985 submitted to the Administrator of the Malegaon Municipal Council, stated that the Joint Director of Health Services, Bombay by the letter dated 15-1-1985 and the Under Secretary to the Government, Public Health Department, Bombay, by his letter dated 19-1-1985 had informed the Council that the Government of India, Ministry of Health and Family Welfare, had, by its resolution dated 31-12-1984 sanctioned five Health Posts to the Council and revamped the staff for the then Family Welfare Centre. The report further stated that at that time the Health Officer had to supervise the administrative work of various departments; that 998 employees were working under the direct control and supervision of the M.O.H. and that if six new health posts, are to be created on the establishment of the Public Health Department of the Council, 1200 employees would come under the supervision and control of the M.O.H. The M.O.H. thus had an extremely heavy workload. It was therefore suggested that there should be one post of Administrative Officer in the Public Health Department of the Council who will be a responsible subordinate of the M.O.H, to deal with all the office correspondence, to administer the department, to scrutinise all the papers put for the signature of the M.O.H. by the other junior assistants, deal with certain formal matters and to deal with direct control of all non-technical matters. Thus, sanction to create eight posts; including the post of Administrative Officer was sought.
The then Chief Officer by an endorsement dated 9-2-1985 on the said report recommended the said proposal and submitted the same to the Administrator of the first respondent. (At that time the first respondent Council was superseded by the Government of Maharashtra and an Administrator was appointed to carry out the functions of the first respondent).
4. By an order dated 12-2-1985 the Council, on the proposal submitted by the M.O.H. and the recommendation made by the Chief Officer ordered inter-alia sanction for the creation of one post of Administrative Officer with the pay-scale and qualifications mentioned in the proposal. The proposal was directed to be submitted to the Government for approval.
5. Under Section 76(1) of the Maharashtra Municipal Councils, Nagar Panchayats And Industrial Townships Act, 1965 (hereinafter the said Act) a Council may, with the sanction of the Director, create such posts of officers and servants other than those specified in Sub-sections (1) and (2) of Section 75 as it shall deem necessary for the efficient execution of its duties under the said Act. Section 316(1)(b) of the said Act reads as under :
316. “When the Council is dissolved under Sub-section (1) of Section 313 or under the proviso to Article 243-ZF of the Constitution of India, the following consequences shall ensue, namely :–
(a)………………………………
(b) all the powers and functions vesting in or exercisable by the Council, the President, the Vice-President, the various committees, the Councillors and the Chief Officer under this Act or any other law for the time being in force shall vest in and be exercisable by such Government Officer or Officers as the State Government from time to time appoints in this behalf and such Officer or Officers shall receive such remuneration from the Municipal fund as the State Government may, from time to time, determine.”
6. Thereafter, the original first respondent i.e. the Malegaon Municipal Council was converted into Malegaon Municipal Corporation as aforesaid. However, at the relevant time, it was the Council that has issued the said order.
7. Respondent No. 3 in exercise of powers under Section 76 of the said Act accorded approval for creation of posts on the establishment of the Council as per the recommendations made by the Collector on the conditions mentioned thereon. One of the post so recommended was that of an Administrative Officer (Health). Condition No. 3 reads as under :
3. “Except the post of Administrative Officer, for all post 100% GIA will be given by the Government of India, hence no D.A. grant will be admissible on those posts.”
8. By an order dated 24-3-1986 the Standing Committee accorded sanction to promote the petitioner who then occupied the post of Statistical Assistant on the post of Administrative Officer (Health) (hereinafter referred to as the said post). Pursuant thereto, the Chief Officer of the first respondent issued an order dated 2-7-1986 directing the petitioner to hand over the charge of Statistical Assistant to the Health Officer and to take charge of the said post with effect from that date.
9. The petitioner’s grievance is that respondent No. 3, by the impugned order dated 20-10-1986 in exercise of powers under Section 310 of the said Act, cancelled the said post. The order states that the Chief Officer had by his letter dated 30-6-1986 informed the Officer of the third respondent that the Council had no need of the said post.
10. It appears that the first respondent filed an appeal before the Director of Municipal Administration, Maharashtra State against the aforesaid order dated 20-10-1986. That appeal however was withdrawn. By the impugned order dated 24-6-1987 the Chief Officer of the first respondent pursuant to the first impugned order dated 20-10-1986 reverted the petitioner to the post of Statistical Assistant.
11. Mr. Bukhari the learned counsel appearing on behalf of the petitioner submitted that Section 310 applies only in cases of en-mass recruitment and not in respect of single appointment posts. Section 310 reads as under :
310. “If in the opinion of the Director the number of persons who are employed by a Council as officers or servants, or whom a Council proposes to employ or the remuneration assigned by the Council to those persons or to any particular person is excessive the Council shall, on the requirement of the Director, reduce the number of the said persons or the remuneration of the said person or persons :
Provided that, the Council may appeal against any such requirement to the State Government, whose decision shall be conclusive.”
12. We are unable to agree with Mr. Bukhari’s submission. There is nothing in Section 310 that limits the scope only in respect of those posts where more than one employee is appointed. To accept his submission would mean that where only one person is appointed to a post, the Director would have no power to require the Council to even remove him or to reduce his remuneration. This then would be so even if the post was not required and the incumbent has no work to do. The whole purpose of Section 310 is to prevent extravagance in the employment of the establishment. This purpose would be defeated if such an interpretation is accepted.
13. Mr. Bukhari then submitted that the impugned order dated 24-6-1987 reverting the petitioner is bad in law as the same could only be done on the Council passing a resolution to that effect. In other words, it is his case that even assuming that the Director’s requirement to the Council is valid and justified, the same cannot be implemented unless and until the formality of the resolution being passed by the Council is complied with. We are unable to accept this submission either. Section 310 expressly states that on such a requirement of the Director, the Council “shall” reduce the number of such persons or the remuneration of the said person or persons. The Council has no choice in the matter. If, for Administrative convenience, the Council is required to pass a resolution that is a different matter and cannot affect the direction of the Director to the Council on such matters. The only remedy of the Council is to file an Appeal against any such requirement. This is clear from the proviso to Section 310. As we have seen, the Council, in fact, filed an Appeal against the requirement but the same was withdrawn.
14. Mr. Bukhari then submitted that the impugned orders were mala-fide. It is no doubt true that allegations of mala-fides have been made in the Petition. These allegations are against persons named therein. However, they have not been joined as parties to this Petition. It is further pertinent to note that there are no allegations against the Director who passed the impugned order dated 20-10-1986. The case or mala-fides must therefore fail.
15. There is one further fact which must be noted in this regard. The impugned order dated 20-10-1986 refers to a letter dated 30-6-1986 addressed by the Chief Officer informing the third respondent that the Council had no need of the said post. Much is said about the letter dated 30-6-1986 including that it in fact did not form a part of the record. That issue really looses relevance in view of the fact that the letter, in turn, refers to a letter dated 17-3-1986 of the Central Government by which the Deputy Director of Health Services, Nashik, recommended not filling an aggregate of about 200 posts referred to therein. That such a letter dated 17-3-1986 was written is not denied even by the petitioner. It was axiomatic therefore for the third respondent to accept the suggestion that in view thereof, there was no necessity of the said post. It would be recalled that the said post was created inter-alia in view of the existence of a large number of posts. The decision to abolish the post cannot be said to be arbitrary or absurd.
16. Lastly, Mr. Bukhari submitted that the impugned orders were in violation of the principles of natural justice as the petitioner was not given any hearing before the same were passed. That the Appellant was not heard in connection with the impugned orders is admitted. Was he entitled to be heard in this regard is the question. We think not.
17. The said post was created due to the exigencies at the material time referred to in the said report of the M.O.H. dated 5-2-1985 submitted to the Administrator of the Malegaon Municipal Corporation. The concerned authorities were satisfied about the need for the said post and therefore sanctioned the creation of, and created the same. As we have also pointed out, subsequently, inter-alia, for the reason that an aggregate of about 200 posts having been decided not to be filled-up, it was decided to abolish the said post.
18. In N. Ramanatha Pillai v. The State of Kerala and Anr., the Supreme Court was concerned with the interpretation of Articles 310 and 311 of the Constitution of India. Even there, the Supreme Court held as under :
14. “The first question which falls for determination is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public.”
33. “…………………….. .With regard to abolition of post and consequential termination no charges could normally be framed and no enquiry could be held. Therefore, apart from the consideration that abolition of post is not infliction of a penalty like dismissal or removal or reduction in rank, the framing of charge, the enquiry and opportunity of showing cause against the imposition of penalty cannot normally apply to the case of abolition of post. The discharge of the civil servant on account of abolition of the post held by him is not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a permanent post should continue or not.” 36. “The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post”.
19. The observation of the Supreme Court would apply with equal, if not greater force, in the present case. The creation of posts is an executive act. No person has a right to the creation of a post. If the need for the post has ceased to exist, no person has a right in the continuance of that post either. The creation, continuance and abolition of posts are policy decisions. These observations of the Supreme Court pertain to the power of “every sovereign Government”. The Supreme Court did not hold that Articles 310 and 311 are the source of such power. The power is inherent. The mode of exercise of such power in respect of certain employees is circumscribed inter-alia by the procedure laid down in these articles provided the termination is of the nature contemplated therein. The consequence of the termination of the petitioner’s services qua the said post is not even covered by Article 311. Though the abolition of the post entails the termination of the petitioner’s service qua that post, the same does not constitute a dismissal or removal of the petitioner from that post. There was no element of punishment in it. The question therefore of the petitioner being afforded an opportunity of showing cause did not arise.
20. Whether the decision was correct or not, is not for the Court to decide. The concerned authorities are the best Judges about the requirement of a post. Courts do not normally question the wisdom of policy makers. We are unable to say that the decision was ex-facie, absurd or irrational. The power to create and abolish the post must necessarily be a matter of policy. The policy must be framed in the interest of the administration. We have also held that there were no mala-fides in the abolition of the post. At least none have been established. It was not a colourable exercise of power with a view to actually dismissing the petitioner.
The petition is therefore dismissed. There shall however be no order as to costs.
At the request of the learned counsel for the petitioner, parties are directed to maintain status-quo, as it exists today, for a period of eight weeks from today.
Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar/Court Stenographer of this Court.