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Judgment
K. Chandru, J.—The Petitioners who are working as JuniorAssistants in the Civil Engineering Department of ChennaiPort Trust have come
forward to challenge an order dated06.08.2002 passed by the first Respondent.
By the impugned communication, the firstRespondent had directed the Heads of Departments toexamine the possibility of abolition of the posts
lyingvacant for more than one year as on 01.07.2002 andforward their recommendation on or before 14.08.2002. Inthat communication, he had
observed that the Heads ofDepartments were requested to review the retention of 277posts which were lying vacant as on 01.10.2001 for
morethan one year. Based on the particulars furnished by theHeads of Departments and as decided at the HODs meetingheld on 22.07.2002, 66
posts lying vacant for more thanone year in different departments out of 277 posts whichwere retained on 01.10.2001 were abolished.
The Petitioner after seeking to set aside thesaid order seeks for a direction to restore the promotional posts of Senior Assistants in the Civil
Engineering Department.
The writ petition was admitted on 20.08.2010.
It is the case of the Petitioners that aftercompleting probation in the post of Junior Assistant, oneis eligible for promotion to the post of Senior
Assistant/Store Supervisor subject to the availability of vacancyin this cadre. This is the normal procedure followed byvarious departments within
the Chennai Port Trust.Accordingly, 35 junior Assistants were promoted as SeniorAssistants in the Accounts Department and 14 StoreAssistants
were promoted as Store Supervisor in theStores Department. When the Petitioners were legitimatelyexpecting similar promotions in the Civil
EngineeringDepartment, to their shock the first Respondent hadabolished 18 vacancies in the post of Senior Assistant.By the abolition, the future
prospect and career of theemployees have come to a standstill. It was contendedthat the abolition was arbitrary and violative of Article 14 of the
Constitution. It was also contended thatabolition of a post can be done only in matters ofexigencies and administrative necessity. Whilepromotional
posts are still available in AccountsDepartment and Stores Department, abolishing the promotional post in the Civil Engineering Department is
arbitrary.
In response to the contentions raised by thePetitioners, the then Chief Engineer, Chennai Port Trusthad filed a counter affidavit dated Nil (March
2011)together with typed set of documents. It was stated thatthe second Respondent Government of India bycommunication dated 09.062000
had issued a RevisedEstimates of budget for the year 1999-2000 and BudgetEstimates for 2000-2001 in respect of Chennai Port Trustand the
Central Government u/s 98(7) of theMajor Port Trusts Act, 1963 sanctioned the Revenue andCapital Budget Estimates of the Chennai Port
Trust,wherein it was stated that that all posts lying vacantfor over one year should be abolished and the actiontaken in this regard should be
intimated to the Ministrywithin a month. It was also communicated from theMinistry of Surface Transport on 09.09.2000 thatconsequent upon the
reduction in the age of retirement ofthe Port Trust Employees from 60 to 58 years, allrecruitments to entry level posts should be stopped. Itwas
found that the efficiency of the Indian Ports werenot satisfactory and it is the cause for reduction of manpower. The port Trust was also directed
that the resultant vacancies at the entry level were not filledup. A further communication was sent by Ministry ofShipping on 19.11.2001 stating
that all posts lyingvacant for more than one year were to be treated asabolished as per the instructions of Ministry of Finance.
It is only pursuant to the saidcommunications, the impugned circular came to be issuedby the first Respondent on 06.08.2002. In the
Annexureto the said circular, it is seen that there are vacanciesin other departments in respect of other posts. But it isonly in the case of Engineering
Department, there are 18vacancies in the post of Senior Assistants. Subsequent totheir representation of the Petitioners, on 20.03.2009,they were
also informed that after abolishing all theposts of Senior Assistants during the year 2003, itcannot be revived. Therefore, It was contended by
theRespondents that the 18 posts of Senior Assistants in theCivil Engineering which were found to be vacant for morethan one year was abolished
even before the Petitioners''promotion to the post of Junior Assistant.
However, Mr. P.J.Rishikesh, learned Counsel forthe Petitioner referred to the judgment of the SupremeCourt in State of Tripura and Others
Vs. K.K. Roy, and contended that promotion is a normal incidence of service and relied upon the following passage found in paragraph 6, which is
as follows:
...Promotion being a condition ofservice and having regard to therequirements thereof as has been pointedout by this Court in the
decisionsreferred to hereinbefore, it was expectedthat the Appellant should have followedthe said principle.
The learned Counsel also referred to the judgment of the Supreme Court in Food Corporation of India and Others Vs. Parashotam Das Bansal
and Others, to contend that an employee of a State though not have any fundamental right of promotion but as a right to be considered. Promotion
is a normal incidence of service. He relied on the following passages found in Paragraphs 12 and 13, which is as follows:
When employees are denied anopportunity of promotion for long years(in this case 30 years) on the ground thatthey fell within a category of
employeesexcluded from promotional prospect, thesuperior court will have the jurisdictionto issue necessary direction.
If there is No. channel of promotion in respect of a particular groupof officers resulting in stagnation overthe years, the court although may
notissue any direction as to in which mannera scheme should be formulated or by reasonthereof interfere with the operation ofexisting channel of
promotion to theofficers working in different departmentsand officers of the Government but thejurisdiction to issue direction to make ascheme
cannot be denied to a superiorcourt of the country.
In the present case, the case of thePetitioners is not for creation of any promotional avenuesince they already have promotional avenue to the
nexthigher post.
The contention raised by the Petitioners wasthat the abolition of posts by the Port Trust which werenot made use of for more than one year as
there was adirection by the Central Government to abolish such ofthose posts so that the budgetary provision are notunduly drained is arbitrary.
The Supreme Court vide its judgment in K. Rajendran and Others Vs. State of Tamil Nadu and Others, has held that the Governmenthas
power to abolish posts and the same cannot be questioned by a Government Servant. The following passages found in paragraphs 12, 30 and 32
may be usefully extracted below:
The power to abolish a civil post isinherent in the right to create it. TheGovernment has always the power, subject,of course, to the
constitutionalprovisions, to reorganise a department toprovide efficiency and to bring abouteconomy. It can abolish an office or postin good faith.
The action to abolish apost should not be just a pretence takento get rid of an inconvenient incumbent.
The question whether Article 311(2) would be contravened if a governmentservant holding a civil post substantivelylost his employment by
reason of theabolition of the post held by him directlyarose for consideration before this Courtin M. Ramanatha Pillai v. State of Kerala9. Two
points were examined in that case (i)whether the Government had a right toabolish a post in a service, and (ii)whether abolition of a post was
dismissalor removal within the meaning of Article 311 of the Constitution. The Court heldthat a post could be abolished in goodfaith but the order
abolishing the postmight lose its effective character if itwas established to have been madearbitrarily, mala fide or as a mask ofsome penal action
within the meaning ofArticle 311(2). After considering theeffect of the decisions in Parshotam LalDhingra case4, Champaklal Chimanlal Shah
v.Union of India10, Moti Ram Deka case5, Satish Chandra Anand v. Union of India11 and Shyam Lal v. State of U.P. and Unionof India12, this
Court observed in thiscase at SCR p. 526 thus: [SCC p. 660, para 36: SCC (L&S) p. 570]
The abolition of post may have the consequence of termination ofservice of a government servant.Such termination is not dismissalor removal
within the meaning ofArticle 311 of the Constitution.The opportunity of showing causeagainst the proposed penalty ofdismissal or removal does
nottherefore arise in the case ofabolition of post. The abolition ofpost is not a personal penaltyagainst the government servant. Theabolition of post
is an executivepolicy decision. Whether afterabolition of the post thegovernment servant who was holdingthe post would be offered
anyemployment under the State wouldtherefore be a matter of policydecision of the Government becausethe abolition of post does notconfer on
the person holding theabolished post any right to holdthe post.
The above view was followed by this Court in State of Haryana v. Des Raj Sangar13 to which one of us (Fazal Ali, J.)was a party. Khanna, J.
speaking for theCourt observed at SCR pages 1037-38 thus:(SCC pp. 847, para 7)
Whether a post should be retainedor abolished is essentially amatter for the Government todecide. As long as such decisionof the Government is
taken in goodfaith, the same cannot be setaside by the court. It is not opento the court to go behind thewisdom of the decision andsubstitute its
own opinion forthat of the Government on thepoint as to whether a post shouldor should not be abolished. The decision to abolish the postshould,
however, as already mentioned, be taken in good faithand be not used as a cloak or pretence to terminate the servicesof a person holding that
post. In case it is found on consideration of the facts of a case that the abolition of the post was only adevice to terminate the servicesof an
employee, the abolition ofthe post would suffer from aserious in firmity and would beliable to be set aside. Thetermination of a post in good faith
and the consequenttermination of the services of theincumbent of that post would notattract Article 311....
In the light of the above, the writ petition stands dismissed. However, there will be No. order as to costs.