K. Sundaram vs The Director of School Education and The Chief Educational Officer

S. Manikumar, J.—The Petitioner has sought for a Writ of Mandamus, directing the Respondents to create a promotional post with higher

pay for the Petitioner (Secondary Grade Teachers working in High/Higher Secondary School) on par with the Elementary School Headmaster

with effect from 1.6.1988 onwards i.e. from the date on which the higher pay scale was given to the Elementary School Headmaster by way of

awarding selection/special grade by counting their total secondary grade service in the promotional post and direct the Respondents to fix the pay

of the Petitioner in the pay scale of Rs. 2000-60-2300-75-3200 with effect from 1.6.88 in the light of G.O. Ms. No. 216 Finance (Pay Cell),

Department dated 22.3.1993 and award the consequential arrears of pay with effect from 1.6.88 onwards and consequential pensionary benefits.

Creation and abolition of the post are purely prerogative of the Government and courts cannot issue any directions to the Respondents to create

any post in the cadre as sought for by the Petitioner. In this context, it is worthwhile to extract few judgments of the Supreme Court on the power

of courts to interfere with the domain of the executive.

In P.U. Joshi and Others Vs. The Accountant General, Ahmedabad and Others, at paragraph 10 of the judgment, the Supreme Court held as

follows:

Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and

other conditions of service including avenues of promotions and criteria to the fulfilled for such promotions pertain to the field of policy is within the

exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is

not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment of eligibility criteria or avenues of

promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change

the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criterial and other conditions of

service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by

appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by

undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service,

as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of

the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and

except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no

right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

The above legal position has been affirmed in a recent judgment in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs &

Pharmaceuticals Ltd. reported in (2007) I SCC 408 at paragraph 37,

that creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi and Others Vs. The Accountant General,

Ahmedabad and Others, . Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the

Respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. this Court cannot

arrogate itself the powers of the executive or legislative. There is broad separation of powers under the constitution, and the judiciary, too, must

know its limits.

In view of the settled legal position, the reliefs sought for in this writ petition is misconceived. Accordingly the writ petition is dismissed. No

costs.