Commissioner, Corporation of Madras Vs.
Madras Corporation Teachers' Mandram & Ors  INSC 1426 (8 November 1996)
8TH DAY OF NOVEMBER, 1996 Present:
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
following Order of the Court was delivered:
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.
Tribunal while upholding the power of the Corporation had directed thus:
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.
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
are accordingly allowed. But in the circumstances without costs.