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The Commissioner, Corporation of Madras Vs. Madras Corporation Teachers' Mandram & Ors [1996] INSC 1426 (8 November 1996)

K. Ramaswamy, G.B. Pattanaik

ACT:

HEAD NOTE:

THE 8TH DAY OF NOVEMBER, 1996 Present:

Hon'ble Mr. Justice K. Ramaswamy Hon'ble Mr. Justice G.B. Pattanaik R. Mohan Sr. Adv. R. Nedumaran, V.G. Pragasam and Ms. Pushpa Rajan, Advs. with him for the appellant Naveen R. Nath and S.R. Bhat, Advs. for the Respondents.

O R D E R

The following Order of the Court was delivered:

Leave granted.

These appeals by special leave arise against the order of the Administrative Tribunal, Tamil Nadu passed in OA No. 708/93 and 1685/93 on August 2, 1994. The appellant- Corporation had adopted a dual policy of appointment of Education Officers either by promotion from the subordinate cadre or appointment by deputation from the Government service. It would appear that the post of Education Officer was upgraded to the post of Deputy Director and they sought appointment by transfer of a Government Officer to fill up the post of Deputy Director to supervise the educational standards in the Corporation. The respondents-Union challenged the said action of the appellant in the tribunal.

The Tribunal while upholding the power of the Corporation had directed thus:

"Therefore, a post in the cadre of the Corporation equivalent to the District Educational Officer should be created to which persons from the Corporation's cadre could be appointed and such persons could be considered after a minimum period of experience for advancement to the higher post in the rank of Chief Educational Officer to be in overall charge of the Corporation's Educational Department." Feeling aggrieved against this order, this appeal has been filed. Shri R. Mohan, learned senior counsel for the Corporation, has contended that the creation of the post and prescription of qualifications are the legal policy of the Government or the executive policy of the Government. The Tribunal cannot give the direction to create a post or to prescribe the experience as may be required as an incumbent to hold the post. We find that there is force in the contention.

Learned counsel for the respondents, in fairness, was unable to meet the contention but he sought to sustain this order on the ground that appointment by transfer affects in- service candidates. We cannot go into it because it is not the subject matter in this case. Under these circumstances, as stated earlier, the question is: whether the Tribunal can give direction to create a post or to prescribe the minimum qualifications for the post? It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. the Court or Tribunal is devoid of power to give such direction. The impugned direction, therefore, is clearly illegal.

The appeal are accordingly allowed. But in the circumstances without costs.

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