G. Satyanarayana vs The Principal Director-in-Charge, National Institute of Small Industry Extension Training and Another

Maithili Sharan, J.—Office Order No. 3(4)/1/91-Estt/860 dated 25-10-1993 of the Principal Director-ln-Charge, National Institute of Small Industry Extension Training, Yousufguda, Hyderabad, is being questioned in this Writ Petition filed under Article 226 of the Constitution of India.

The brief facts leading to this petition may be summarised thus: The petitioner joined the 1st respondent institution on 22-5-1964 as Stenographer/Typist and was promoted as Head Clerk on 1-3-1971 and thereafter promoted to the post of Superintendent on 1-3-1978. He also worked as canteen Manager (Group B post) as well as Stores Officer. After wads for three years i.e., from 1987 to 1990 he worked as Purchase Officer-in-Charge and then as Section Officer on ad-hoc basis for six months. It is averred by the petitioner that by the Office Order No. 3(4)/1/91-Estt/360 dated 1-7-1992 issued by the 1st respondent, he was promoted on temporary officiating basis as Hostel Warden till regular selection to fill the post was made or until further orders whichever is earlier. It is further averred by him that thereafter by the impugned order dated 25-10-1993, he was communitcated that the competent authority had decided to abolish the post of Hostel Warden and as a consequence of which, he was reverted to his substantive post of Superintendent with immediate effect. The petitioner has questioned the said impugned order in this writ petition invoking the extraordinary jurisdiction of this Court.

The respondents have filed their counter-affidavit stating therein that the petitioner was temporarily promoted as Hostel Warden and, in the normal course, if the post was to continue, he would have been considered for regular appointment as Warden, but, since it was decided by the Executive Committee to abolish the post of Hostel Warden the services of the petitioner were reverted from the temporary post he was holding to his substantive post of Superintendent. It has further been averred by the respondents mat the authority which has power to create a post could also abolish the same. It has thus been prayed that the petition is liable to be dismissed.

The learned counsel for the petitioner has vehemently argued that the competent authority or the Executive Committee was not in existence at all and hence the impugned order passed by it for the abolition of the post of Hostel Warden was illegal, arbitrary and unreasonable and hence devoid of any consequence. On the strength of this argument, he has submitted that the said order deserves to be quashed and a direction to this effect be given to the respondents. The learned counsel for the petitioner has also drawn my attention to the Rules and Regulations and the Memorandum of Association of the National Institute of Small Industry Extension Training (for short ''NISIET''), particularly to Rule 2(c) defining ''Governing Council'' and Rules 28,40 and 41 dealing with the ''Governing Council'' and its functions and powers, and has contended that the ''Governing Council'' is the body which deals with the creation of posts etc. as it is the Executive body. Thus, according to him, it is only the Governing Council of the NISIET which could deal with the matter in hand. Besides, he has further submitted that there is no provision in the Rules and Regulations of the NISIET for the abolition of the post, hence also, the impugned order is illegal and arbitrary.

On the other hand, the learned counsel for the respondents has submitted before me that in the year 1985 there has been an amendment in this regard and the Memorandum No. 10(47)/85-GC/14854 to 888 dated 27-6-1985, shows that the minutes of the first meeting of the Governing Council of NISIET held at New Delhi on Thursday, 16th May, 1985 were duly approved by the Chairman of the Governing Council. The learned counsel has drawn my attention to the said memorandum. He has further submitted that Item No. G-4 of this memorandum deals with the constitution of the Executive Committee and delagation of powers to it. The annexure II of the said Memorandum, in point No. 7, specifically deals with the creation of posts and it speaks that ''all proposals for creation of posts shall be placed before the Executive Committee for approval''. Thus, the learned counsel for the respondents has contended that after June, 1985, it is the Executive Committee, to which the Governing Council delegated its powers for the creation of posts, and since creation of post includes abolition of post also, hence, as the post of Hostel Warden was abolished by the Executive Committee on 25-10-1993, there was nothing illegal or arbitrary on its part.

Looking to the Memorandum of Association of the NISIET containing Rules and Regulations, as submitted by the learned counsel for the petitioner, as well as the subsequent amendment made by the Memorandum in June, 1985 coupled with the constitution of the Executive Committee and the delegation of the powers of the Governing Council to it, as submitted by the learned counsel for the respondents, I find substance in the contentions of the learned counsel for the respondents. A parently enough, though there was no Executive Committee as such functioning before 1985, but, afterwards, it did come into existence after the first meeting of the Governing Council held on 16-5-1985 at New Delhi, as is clear from the Memorandum (amendment), stated supra. Going through it, it is amply clear that the Governing Council delegated its powers for the creation of posts and for their approval to the Executive Committee. In their counter-affidavit also, the respondents have averred that the Executive Committee had decided to abolish the post of Hostel Warden. In the impugned order it has been mentioned that the competent authority had decided to abolish the said post. By competent authority, it necessarily meant the ''Executive Committee''. Thus, there was nothing wrong in these two nomenclatures i.e. ''Competent Authority'' and ''Executive Committee'' which are the two names of one and single body.

Now, the only point that arises for consideration is, whether the Executive Committee which had the power to create the post also enjoyed the power to abolish the same? I am of the view that the power to create includes the power to destroy, as well as the power to alter what is already created. Section 21 of the General Clauses Act, 1897, also speaks of the power to issue, to include power to add to, amend, vary or rescind any notifications, orders, rules or bye-laws. The Supreme Court in M. Ramanatha V. State of Kerala (1974(1) SLR 225) has held that the power to abolish any civil post is inherent in every sovereign Government, and this power is a policy decision exercised by the executive. Thus, it is clear that the Executive Committee had the power to abolish the post which it did, and on this count, the impugned order could not be set aside.

Besides, it is also worth-while to note here that the promotion of the petitioner to the alleged post of Hostel Warden was only on temporary officiating basis and did not confer on him any right whatsoever to claim the promotion against the regular vacancy. Further, he was promoted till regular selection to fill the post was made or until further orders whichever is earlier. Now, in the instant case, the further order was made by the Executive Committee to abolish the post, hence also the petitioner cannot be said to have a legal and justifiable grievance to remain on that post. The Supreme Court in Union of India (UOI) and Others Vs. Bigyan Mohapatra and Others, has also taken the view that consequent to the abolition of the post if the incumbent is reverted to his substantive post, then, he cannot claim any right to officiate on that post; he can have no valid complaint in this regard.

In view of the above discussion, I fund no merit in this matter. Consequently, this writ petition is hereby dismissed. There shall be no order as to costs.