MS RENU BALA & ORS. vs UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 22nd December, 2023
+ W.P.(C) 16146/2023 & CM APPL. 64887/2023 & 64888/2023

MS RENU BALA & ORS. ….. Petitioners
Through: Mr. K.C. Mittal, Adv.

versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Chetan Sharma, ASG with Mr.Apoorv Kurup, Advocate for R-1
Mr. Santosh Kumar Tripathi (Standing Counsel, Civil) for GNCTD R-3

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
CM APPL. 64887/2023
1. The present application under Section 151 of the Code of Civil Procedure, 1908, seeks the following prayer:
“a) stay the operation of the OM dated 21.11.2023 during the pendency of the accompanying Writ Petition and alternatively direction may be issued to the Respondents No. 1 & 2 to seek option from the Petitioners for opting SVRS or redeployment in other autonomous bodies of the Ministry and to refer to surplus cell.
b) pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present.”

2. Learned counsel appearing on behalf of the petitioner submitted that the petitioners are regular employees of respondent no. 2 and have been serving it for almost 26 years.
3. It is further submitted that the respondents have been illegally and arbitrarily decided to dissolve and close the respondent no. 2 without complying with the statutory regulations. Furthermore, they have wrongly held that the petitioners’ last day of retirement is 15th December 2023 vide the office memorandum dated 21st November 2023.
4. It is contended that the petitioners in terms of office memorandum dated 28th February 2002, have been denied option to choose between Voluntary Retirement Scheme and re-employment.
5. In view of the foregoing discussion, the counsel appearing on behalf of the petitioner prayed that an interim stay may be granted against office memorandum dated 21st November 2023 as per which the petitioners have to voluntarily retire on 15th December 2023.
6. Per Contra, the learned counsel appearing on behalf of the respondents vehemently opposed the contentions raised by the petitioner and submitted to the effect that the decision of the respondent falls within its executive domain of the Union Cabinet.
7. It is submitted that the dissolution of respondent no. 2 is in accordance with the provisions of the Societies Registration Act, 1860 and the resolution to dissolve was taken at Annual General Meeting dated 18th June 2022, which has affirmed by the respondent no.2’s General Body at its 62nd and 63rd General Body Meetings.
8. It is contended that the Cabinet’s decision to grant Special Voluntary Retirement is a special measure in accordance with Office Memorandum dated 28th February 2002 of Department of Personnel & Training falls with the decision-making power accorded by the Constitution of India.
9. Heard the learned counsel appearing on behalf of the parties.
10. The question for adjudication before this Court whether the petitioners are entitled for stay of the Office Memorandum 21st November 2023 as per which the petitioner will be voluntarily retired from the respondent no. 2.
11. It is a settled law that it is a settled law that the power to abolish any civil post is inherent in every sovereign Government and such abolition will not provide any vested right to the person holding the abolished post any right to be re-employed or to hold the same post.
12. The Hon’ble Supreme Court reiterated the above- stated principle in the landmark judgment of State of Haryana v. Des Raj Sangar, (1976) 2 SCC 844 as follows:
“7. Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of 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 a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311. In M. Ramanatha Pillai v. State of Kerala [(1973) 2 SCC 650 : 1973 SCC (L&S) 560 : (1974) 1 SCR 515] Ray, C.J. speaking for the Constitution Bench of this Court observed: [SCC p. 657: SCC (L&S) p. 567, para 23]

“A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2).”

It was further observed: [SCC p. 660: SCC (L&S) p. 570, para 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.”

13. The Hon’ble Supreme Court summarised the position of law pertaining to the power vested by the Constitution of India in the executive with regards to decision-making in the judgment of State of Haryana v. Navneet Verma, (2008) 2 SCC 65 as follows:
“11. Before proceeding to ascertain the answer for the above question, it is useful to refer to the appointment order of the Government of Haryana dated 13-7-1993 whereby the respondent herein was appointed as Accounts Executive in HBPE. Among the other terms, Clause 2 of the said order is relevant which reads as under:
“This offer of appointment is purely against temporary post which is liable to be abolished at any time and carries no promise of subsequent permanent employment. No offer of permanent vacancy can be made to him at present. Consequently his services can be terminated without notice whenever there is no vacancy against which he can be retained.”
It is clear that the respondent herein was appointed purely against temporary post and it is liable to be abolished at any time. The said clause makes it clear that the post has no assurance or promise for a permanent employment. It also makes it clear that his services can be terminated without notice whenever there is no vacancy against which he can be retained. Now, with this background, let us consider the law laid down by this Court with regard to power of the Government in abolishing temporary/permanent post.
12. In M. Ramanatha Pillai v. State of Kerala [(1973) 2 SCC 650 : 1973 SCC (L&S) 560 : (1974) 1 SCR 515] a Constitution Bench of this Court held as under : (SCC p. 657, para 23)
“23. A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2).”
13. In Kedar Nath Bahl v. State of Punjab [(1974) 3 SCC 21] a three-Judge Bench of this Court held in para 11 as under : (SCC p. 27)
“11. … If, in the interest of the administration, the temporary post is abolished, the question as to what were the personal relations between the appellant and his superiors was irrelevant. Moreover, all that the appellant has been able to say is that his immediate superiors in the Department were hostile to him. But here we are concerned not with the action of his immediate superiors but the action of the Government. The decision to discontinue the post was the decision of the Government and it is not alleged in the writ petition that in taking this decision the Government acted mala fide. We, therefore, agree with the High Court that there is no substance in the allegation that the post was discontinued or abolished in order to punish the appellant.”
X X X
15. In N.C. Singhal (Dr.) v. Union of India [(1980) 3 SCC 29 : 1980 SCC (L&S) 269] similar issue was considered in detail. Accepting the stand of the Government of India in abolishing the post, this Court held thus : (SCC pp. 44-45, para 18)
“18. … The need for the post or the requirements of the hospital or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the court cannot interpose its own decision on the necessity of creation or abolition of posts. Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity. The Government is a better judge of the interests of the general public for whose service the hospitals are set up. And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital. If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public. Creation and abolition of posts is a matter of government policy and 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 (see M. Ramanatha Pillai v. State of Kerala [(1973) 2 SCC 650 : 1973 SCC (L&S) 560 : (1974) 1 SCR 515] ). The court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide, legal or factual.”
16. In the recent decision, Avas Vikas Sansthan v. Engineers Assn. [(2006) 4 SCC 132 : 2006 SCC (L&S) 613] analysing all earlier decisions, this Court has concluded : (SCC p. 148, para 59)
“59. It is well settled that the power to abolish a post which may result in the holder thereof ceasing to be a government servant has got to be recognised. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, a department which was abolished or abandoned wholly or partially for want of funds, the court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged.”
17. We summarise the power of the Government in abolishing a post and role of the court for interference:

(a) the power to create or abolish a post rests with the Government;
(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;
(c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public;
(e) the court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual;
(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted.

With the above principles, let us consider whether the abolition of the posts of Accounts Executives are justified and consequential order of termination terminating the respondent herein from the said post is sustainable.”

14. Therefore, the Hon’ble Supreme Court has emphasised on the fact that the creation and abolition of any post falls in the exclusive domain of the executive. The Court cannot put on the shoes of the executive and adjudicate upon the fact whether certain post shall be abolished or created.
15. It is the executive which knows what is the best policy or decision for the working of the various organs of the executive. It possesses the requisite knowledge and expertise to take such decisions while taking into consideration the stake of the various stakeholders and balance their interest.
16. In the present case, the petitioners are seeking that they shall be given an option to be re- employed to any other autonomous branch of the respondent no.1.
17. This Court is of the view that there is no vested right with the petitioner to be re- employed with the respondent. Moreover, the decision to re- employ the petitioners is vested with the respondents, since they have the requisite decision- making power in this regard.
18. Under Article 226 of the Constitution of India, this Court will not enter into the merits and shall restraint itself from interfering the decision of the executive unless decisions of the executive are in violation of any statutory mandate. In the instant case, there is no such violation of any statutory mandate by the respondents.
19. In view of the foregoing discussion, the power to create or abolish the post falls within the executive domain and there is no vested right with the petitioner to be re- appointed to any other autonomous body of the Ministry, therefore at this stage this Court finds that there are no circumstances which warrants grant of interim protection.
20. Accordingly, the instant application is dismissed.
W.P.(C) 16146/2023
1. Learned counsel appearing on behalf of the petitioner submitted that the rejoinder to reply to the present application filed on behalf of the respondent No.1 has been filed vide diary no. E-2314101/23 dated 21st December 2023, however, the same is not on record. The learned counsel appearing on behalf of the petitioner, today during the course of arguments, has placed on record the copy of the same, which is taken on record.
2. List on 19th February 2024.

CHANDRA DHARI SINGH, J
DECEMBER 22, 2023
a/rk/db

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