Chairman, Ad - Hoc
Committee & ANR Vs. Lila Pal & Ors  INSC 422 (12 March 2008)
H.K. Sema & Markandey
O R D E R CIVIL APPEAL NO. 4152 OF 2002 This appeal is filed by the
authority against the order passed by the Division Bench directing creation of
additional post to accommodate the respondent No.1.
Briefly stated, the facts are as follows.
Respondent No.1 was appointed on contingent basis. The case of the appellant
is that the appointment by the Managing Committee of the Duff Primary School at
Chinsurah was against non-existing post. Be that as it may be. We are not
concerned with this. Suffice it to say, the respondent was stated to have been
appointed on contingent paid basis of Rs.50/-. It appears that repeated request
for creation of post has not produced any result and, therefore, the respondent
No.1 filed a writ petition before the learned single Judge. The learned single
Judge disposed of the writ petition with a direction to the school authority to
pursue the matter for sanction of an additional post on the basis of increase
roll strength .......2.
- 2 - Aggrieved thereby, the authority, the appellant herein, filed an
appeal MAT No.3956/1999. The Division Bench disposed of the appeal by impugned
order in terms of the following:- "We, therefore, direct that the creation
of the additional post shall be made and completed in all respects within three
months hereof positively and the writ petitioner's appointment in the said post
shall be completed within six months hereof, within which time the writ
petitioner shall commence drawing her regular monthly and other
Aggrieved thereby, the authority has preferred this appeal by special leave. The short question on the basis of which we would allow this appeal is that
the creation of a post is within the domain of the executive authority. It is
not the function of the Courts to create posts. There is catena of decision of
this Court on this point.
Avoiding multiplicity, a recent judgment of this Court was delivered in
Divisional Court clearly pointed out in paragraph 15 of its judgment that the
Court cannot direct the creation of posts. Creation and sanction of posts is a
prerogative of the executive or legislative authorities and the Court cannot
arrogate to ......3.
- 3 - itself this purely executive or legislative function, and direct
creation of posts in any organization. In the facts and circumstances as stated above, both the learned single
Judge and the Division Bench were not justified in directing for creation of a
post. Both the orders of the learned single Judge and of the Division Bench are
set aside. This appeal is allowed.
After the allowing of this appeal, Mr. Ranjan Mukherjee, learned counsel for
respondent No.1, submits that he would like to file a representation before the
appropriate authority. It is upto him to do so. We have nothing to say.