Full Judgment Text
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PETITIONER:
THE COMMISSIONER, CORPORATION OF MADRAS
Vs.
RESPONDENT:
MADRAS CORPORATION TEACHERS’ MANDRAM & ORS.
DATE OF JUDGMENT: 08/11/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
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
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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.