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Judgment
POINTS,CLARIFICATIONS
(a) Whenever higher level
posts are abolished,
whether junior level posts
are also to be abolished as
a consequence thereof.","Yes, whenever higher posts are abolished, it
will be necessary to abolish
personal/supporting staff of that higher level
post(s) simultaneously. In addition to such
abolition, it will also be desirable to have a
work sty conducted to determine what other
restructuring and abolition of lower level
posts would be required as a result of
abolition of higher level post (s).
(b) If a post is vacant or
held in abeyance for some
time, whether the post can
be filled up or revived, as
the case may be, by the
administrative
department/MinistryÂ","If the post is held in abeyance or
remains unfilled for a period of one
year or more, it would be deemed to
be abolished. Integrated Finance of
each Ministry/Department may
monitor abolition of such posts and
ensure that abolition orders are
issued within one month of the post
remaining unfilled/held in abeyance
for a period of one year. If the post
is required subsequently, the
prescribed procedure for creation of
new posts will have to be followed
i.e. as briefly set out below:-
PLAN POSTS GROUP
A POSTS","        Approval        of
        Finance
Minister will be required.Â
GROUP B,C & D POSTS","May be created with the approval of the
Secretary of the Administrative
Ministry/Department provided:-
(i) The Expenditure on the establishment is
within 10% of the project cost.
(ii) The post to be created are in conformity
with the prescribed norms, and
(iii) Group A post (s), if necessary, have been
approved by the Finance Minister
NON PLAN POSTS
(i) Group A Posts of and
above the level of Joint
Secretary (Rs.9500-6700)","May be created with the approval of
Cabinet after obtaining the approval
of Finance Ministry
(ii) Group A posts below the
level of Joint
Secretary and Group B,C
& D Posts","May be created with the approval of
Finance
Minister.
For creation of Non Plan posts
matching savings are required,
which should be by surrender of
posts in the same group or of posts
in the immediate line of promotion.
Posts which are found justified on the basis
of workload and functional justification
can only be created.
Interestingly, the respondents have, in their surrejoinder, sought to submit that it was only in 2012 that the fact that the post of librarian at the",
Information Centre, Jalandhar was deemed to have been abolished in 1997, came to light.Â",
Having heard the petitioner, who appears in person and Dr. Ashwani Bhardwaj, learned counsel for the respondents, we are of the considered",
opinion that the manner in which respondents had acted, in the present case, is totally alien to law.Â",
The respondents cannot plead ignorance of Ministry of Finance Office Memorandum (OM) No 19 (1)/IC/86 (supra), regarding abolition of posts",
which remained unfilled for a period of one year, and seek to capitalize thereon. Once the posts of librarian at the Information Centres, Jalandhar",
and New Delhi remained unfilled for a year i.e. till 16th March, 1996 in the case of the Information Centre, New Delhi and till 1st September, 1990 in",
the case of the Information Centre, Jalandhar, the said posts were deemed to have been abolished, and the respondents frankly acknowledge as much.",
There could be no question, therefore, of grant of any salary or emoluments, to any person working as librarian in either of the said Information",
Centres, after the said dates. The only option, to the respondents, would have been to seek creation of fresh posts of librarian. No authority, permitting",
the respondents to request the Ministry to “revive†the posts which stood abolished by operation of law, is referred to, by the respondents, or has",
been brought to our notice in Court. The OM dated 3rd May, 1993, is categorical in requiring that, in case a “deemed abolished post†is",
required to be filled, it would have to be re-created, in accordance with the procedure and stipulations prescribed therein. Â",
There is no question, therefore, of any “revival†of a post which is deemed to stand abolished, far less of any appointment being made against",
such post. (In any case, it is an admitted position that the said posts have never been “revivedâ€.) Neither have the respondents pointed out any",
statutory provision or executive instruction, which empowered them to shift the “capital of the post of Librarian†from the Information Centre,",
Srinagar to the Information Centre, New Delhi, six months after Sh. Vijay P. Nitnaware had been appointed against the said post, and to regularise the",
said appointment retrospectively. These are all actions which, in our view, were in the nature of knee-jerk responses, with no basis, in law,",
whatsoever. Â,
Once the post of librarian at the Information Centres at New Delhi and Jalandhar stood abolished by operation of law, it was, ex facie, illegal, on",
the part of the respondents, to disburse payments, to Sh. Vijay P. Nitnaware and Ms. Shakila Dikhusha against the said posts. It is important to",
reiterate, in this regard, that para 8 of the counter affidavit specifically admits that Sh. Vijay P. Nitnaware was transferred from the Information",
Centre, Srinagar “to the deemed abolished post†of Librarian at the Information Centre, New Delhi. This, needless to say, was entirely",
unconscionable in law.Â,
The respondents have sought to contend that no appointments were made against the abolished posts of librarian at the Information Centres at,
Jalandhar and New Delhi, but that they had transferred librarians, holding posts at other stations, to Jalandhar and New Delhi, along with the posts.",
Specifically, in the case of librarian at New Delhi, it is asserted that Shri Vijay P. Nitnaware, who was working as librarian at the Information Centre",
at Srinagar, was transferred with the post of librarian, to New Delhi. This, in our view, is also equally impermissible and made tantamount to a fraud",
on the mandate contained in the OM dated 3rd May, 1993 (supra).Â",
The said OM is categorical in stipulating that posts which remain unfilled for a period of more than one year, are deemed to stand abolished and",
that in case the posts require at a later point of time, they would have to be re-hyphened created in the manner stipulated therein. When it was not",
permissible, for the respondents, to appoint librarians at New Delhi or Jalandhar, because of the said posts standing abolished by virtue of the",
aforementioned OM, posting persons as librarian, at the said stations, by purportedly transferring the posts held by them elsewhere, would amount to a",
circuitous attempt to circumvent the mandate of the OM, thereby seeking to do, indirectly, what could not be done directly. It is trite, in law, that it is",
not permissible to do, indirectly, that which cannot be done directly.Â",
That any attempt to do so, would amount to a fraud on the statute (in this case, the OM). Reference may be made, in this context, to the",
judgments of the Supreme Court in Jagjir Hussain v. Ranbir Singh and District Collect, Chittoor v. Chittoor District Groundnut Traders Association,",
AIR 1989 SC 989 which had been followed by this Court, in MTNL v. Telecom Regulatory Authority of Delhi, AIR 2000, Delhi 208. Â",
The respondents, therefore, had no authority, whatsoever, to appoint anyone as Librarian, at the Information Centres at Jalandhar after September,",
1991 and New Delhi, after March, 1996. Neither could any payment have been disbursed, to the officers purportedly holding the post of librarian at",
these Information Centres, after the said dates.Â",
However, as the issue has been raised by the petitioner, before this Court, only in 2016, and the incumbents who were appointed against the",
deemed abolished posts of librarian at the Information Centres at Jalandhar and New Delhi have not been impleaded as respondents in this case, we",
are not inclined to pass any orders against the said incumbents. It appears, from the record that, as on date, no officer is working as librarian at the",
Information Centre at Jalandhar or at New Delhi. We clarify that, as these posts stood abolished by operation of law, and no new post of librarian, at",
either of the Information Centres at Jalandhar or New Delhi, has been created, it would not be permissible to appoint anyone as librarian at either of",
these Information Centres, or disburse payments, to any such appointee, against such post. The act of shifting the “capital of the post of librarianâ€,",
from the Information Centre, Srinagar to the Information Centre at New Delhi, is also sans any authority of law, and is, therefore, declared illegal. The",
post of librarian at the Information Centre, Srinagar shall, therefore, stand revived accordingly.Â",
Needless to say, this judgment shall not operate as a fetter in the way of creation of fresh posts of librarian at the Information Centres at Jalandhar",
or New Delhi, should the Ministry deem it appropriate, so to do, in accordance with law.",
The writ petition is disposed of, in terms of the above observations and directions. There shall be no order as to costs.",