Full Judgment Text
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CASE NO.:
Appeal (civil) 5064 of 2007
PETITIONER:
State of Haryana & Ors
RESPONDENT:
Navneet Verma
DATE OF JUDGMENT: 31/10/2007
BENCH:
Tarun Chatterjee & P. Sathasivam
JUDGMENT:
JUDGMENT
(Arising out of SLP (C) No. 23499 OF 2004)
P. Sathasivam, J.
1) Leave granted.
2) Whether the abolition of the post has been done in
good faith or whether it is a camouflage to cover up and
conceal the real intention of weeding out the respondent
from service is the only question to be decided in this
appeal.
BRIEF FACTS:
3) The respondent-herein was appointed as Accounts
Executive in the Haryana Bureau of Pubic Enterprises (in
short \021the HBPE\022) on 16.07.1993. While continuing so, his
services were terminated on 31.12.1994 on the ground that
the post of Accounts Executive has been abolished.
According to the respondent-herein, the third appellant
applied for the post of Financial Adviser. Even though she
did not fulfill the prescribed requirement of three years
experience after doing chartered accountancy, she had been
appointed as Financial Adviser and the respondent-herein
who was appointed as Accounts Executive was required to
report to her due to which she wanted him to work as her
personal staff. He did not carry out petty directions. When
he brought these facts to the notice of the Member
Secretary, HBPE, he wanted him to resign the job. The
Member Secretary and the Financial Adviser seemed to have
different attitude and started planning to eliminate him.
Having no other option, on 26.07.1994, he made a
representation to the then Chief Minister of Haryana. In the
meanwhile, the Financial Adviser \026 third appellant herein
lodged a false and baseless complaint against him to the
Member Secretary. Based on the complaint of the Financial
Adviser, a preliminary inquiry was conducted. However, no
action was taken against him on the basis of the report of
the Inquiry Officer. But instead of taking any action, in
accordance with law, his services have been dispensed with
consequent upon the abolition of the posts of Accounts
Executives.
4) According to the respondent, there is no
justification for abolition of the posts of Accounts Executive
and it was done with a malafide intention to dispense with
his services without any basis. Though two posts of
Accounts Executives were advertised, only one post was
filled up by appointing him. Thus, according to him, the
post was not abolished in good faith, but this was a device
to weed him out from service. Therefore, the order of
termination on the ground of abolition of post is liable to be
set aside.
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5) It is the case of Haryana Government and HBPE
that the abolition of posts of Accounts Executives was not
done with malafide intention or extraneous reasons.
According to them, in January, 1994, it was felt that the
work of Bureau was not being performed as per official
requirements and it required restructuring of the staff vis-‘-
vis the work load of the Bureau and it was observed that
the contribution of two posts of Accounts Executives,
especially, when there are two posts of Accountants were
not result oriented and the work could smoothly be carried
out on even without the two posts of Accounts Executives.
It was further stated that the Accountants can send their
case directly to the Financial Advisor, who was the head of
the financial wing in giving advice regarding financial offers.
Consequently, two posts of Accounts Executives were
abolished and services of the respondent were terminated
as he was no longer required.
6) Though a complaint was received from the Financial
Adviser regarding mis-behaviour by the respondent-herein,
preliminary inquiry was conducted into the allegations
made, but no action was taken and the preliminary inquiry
has no relevance with regard to the decision taken on the
abolition of the posts. The said decision was taken to
abolish the posts of Accounts Executives after obtaining
permission of the government.
7) The Learned Single Judge of the Punjab and
Haryana High Court, after finding that the abolition of posts
of Accounts Executives have not been done in good faith but
only intended to get rid of the respondent-writ petitioner
herein, quashed the order dated 30.12.1994 abolishing the
posts of Accounts Executive and consequential termination
of services of the writ petitioner. In the same order, the
learned Judge issued direction for reinstatement with all
consequential benefits. The said order was challenged by
the Government of Haryana, HBPE as well as Smt. Kiran
Lekha Walia, Financial Adviser, HBPE in Letters Patent
Appeal No. 163 of 1999. The Division Bench, by impugned
order, accepted the conclusion arrived at by the learned
Single Judge and finding no merit in the appeal dismissed
the same with no order as to costs. Questioning the order
of the High Court, the appellants have filed the above
appeal by way of special leave.
8) We have heard Mr. P.N.Misra, learned senior
counsel, appearing for the appellants and Mr. M.K.Dua,
learned counsel, appearing for the respondent.
9) As observed earlier, we have to find out whether the
abolition of posts of Accounts Executive has been done in
good faith or whether it is a camouflage to cover up and
send out the respondent-herein from service.
10) 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 13.07.1993 wherein
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:-
\023This 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.\024
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
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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.
i) M. Ramanatha Pillai vs. The State of Kerala and
Another, (1973) 2 SCC 650, a Constitution Bench of this
Court held as under:
\02323. 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).\024
ii) Shri Kedar Nath Bahl vs. The State of Punjab and
Others, (1974) 3 SCC 21, a three-Judge Bench of this Court
held in para 11 as under:
\023\005 \005 \005.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 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 malafide. 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.
iii) State of Haryana vs. Shri Des Raj Sangar and
Another, (1976) 2 SCC 844, this Court, in para 8, has held:
\023\005. \005 \005 The fact that the post to be abolished is held by a
person who is confirmed in that post and the post which is
not abolished is held by a person who is not permanent
would not affect the legality of the decision to abolish the
former post as long as the decision to abolish the post is
taken in good faith.\024
iv) Dr. N.C. Singhal vs. Union of India and Others, (1980)
3 SCC 29. Similar issue was considered in detail. Accepting
the stand of the Government of India in abolishing the post,
this Court held thus:
\02318. \005 \005 \005 The need for the post of 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
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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.) [1974] 1 S.C.R. 515 at
520. 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.\024
v) In the recent decision - Avas Vikas Sansthan and
Another vs. Avas Vikas Sansthan Engineers Assn. and
Others, (2006) 4 SCC 132, analyzing all earlier decisions, this
Court has concluded:
\02359. 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 recognized. 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.\024
11) We summarize the power of 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 malafide,
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.
12) 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.
13) The main grievance of the respondent herein was that
since he was also equally qualified as that of Financial
Adviser, appellant No.3 herein, she was not in favour of
continuing him in HBPE as Accounts Executive. The other
grievance was that appellant No.3 used to humiliate by
insulting him. According to him, instead of taking any action
against him under the service Rules, his services have been
dispensed with by abolishing the post of Accounts Executive.
In other words, it is his specific case that the abolition of post
of Accounts Executive was done with a mala fide intention to
dispense with his service without any basis. The materials
placed before the High Court as well as this Court show that
HBPE as well as the Financial Adviser denied those
allegations. In the light of the complaint, allegations and
counter allegations, we verified the relevant records which are
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available in the paper book. The first complaint (Annexure R1)
dated 15.09.1993 shows that there was some
misunderstanding between the Accounts Executive and
Financial Adviser, however, scrutiny of the said complaint
clearly shows that only Personal Assistant to Financial Adviser
was responsible for the alleged misbehaviour. In the
complaint, Accounts Executive has specifically stated, \023The
P.A. attached to the F.A. grossly misbehaves and uses foul and
abusive language on the instigation of the F.A.\024 We also
perused the letter of the Member Secretary, HBPE dated
21.09.1993 addressed to the Accounts Executive and
subsequent correspondence which are available in the appeal
paper book. As observed earlier, though certain
misunderstanding arose between the Accounts Executive and
the Financial Adviser, it is impossible to believe that for this
reason the Government abolished the post of Accounts
Executive and consequently terminated the service of the
respondent herein.
14) Learned senior counsel appearing for the appellants, by
placing relevant materials, submitted that taking note of lesser
activities of HBPE and after assessing the work load as well as
sanctioned staff and after full deliberations by responsible
officers, it was recommended to the Government for abolition
of two posts of Accounts Executives. On accepting the
recommendations of the Committee constituted by HBPE, the
Government passed an order according sanction to abolish
two temporary posts of Accounts Executives sanctioned for
HBPE from 31.12.1994 (A/N) vide order dated 30.12.1994
(Annexure R-13). The said Government Order was issued in
the name of Governor of Haryana and with the concurrence of
Finance Department. Based on the said decision of the
Government and in view of Condition No.2 of the appointment
letter of the respondent bearing No. 2/8/88-Estt-1 dated
13.07.1993, his services has been terminated from 31.12.1994
(AN). In paragraph supra, we already referred to Condition
No.2 of the appointment order which makes it clear that the
appointment of the respondent was fully against temporary
post and the same is liable to be abolished at any time and
without notice. In such circumstances, we are unable to
accept the claim of the respondent that there was no bona fide
in terminating his service and the High Court has committed
an error in accepting the said claim.
15) It is also relevant to point out that by office order dated
05.08.1994 HBPE has earmarked various types of
works/subjects to be handled by Financial Adviser, 3rd
appellant herein, and Accounts Executive, respondent herein.
A perusal of the said office order, filed as Annexure R-7 in the
appeal paper book, clearly demarcates various types of work to
be handled by the Financial Advisor and the Accounts
Executive. Learned senior counsel appearing for the
appellants has also brought to our notice various minutes of
the meetings and the ultimate decision by HBPE for pruning
their staff considering less work load and present position of
the staff sanctioned. Proceedings dated 12.01.1994 (Annexure
R-3) shows that in order to assess the work load and present
position of the staff sanctioned for the HBPE a meeting of the
officers of the Bureau was held by the Chairman, HBPE on
11.09.1994 in which the Member Secretary, Personnel
Adviser, Financial Adviser and Assistant Research Officer of
HBPE were participated. In the said meeting, the Chairman
felt that the work of the Bureau was not being performed as
per its mandate and suggested some restructuring of staff vis-
‘-vis the workload of the Bureau. He further observed that
when there are three professional posts to handle the financial
affairs, Management Affairs and Personnel Affairs of all the
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State Public Enterprises then there was no necessity of having
two posts of Accounts Executives having the similar
qualifications and experience as the Financial Adviser. It was
also suggested that in the next officers\022 level meeting, the
complete restructuring of staff vis-‘-vis officers oriented
nature of work of the Bureau and sanctioned staff may be put
up with details. Thereafter on 11.04.1994 (Annexure R-4), a
meeting was held. The minutes of the meeting shows that the
details of the sanctioned staff, work load and re-structuring
was discussed in detail. It further shows that the instructions
on economy in expenditure issued by the State Government
from time to time were also brought to the notice of the
Chairman for which he desired that these should also be made
applicable for the staff of the Bureau. The Chairman had also
made clear that the Bureau should not have excess staff as
compared to the work load. In the said meeting while
assessing the work load and staff in the Financial Wing, it was
observed that the contribution of two posts of Accounts
Executives especially when there are two posts of Accountants
was not result oriented and the work can smoothly be carried
on even without the two posts of Accounts Executives. The
Chairman desired that MS/HBPE should assess the work load
and the staff strength of Finance and Accounts Wing and
discuss in detail in the next officers level meeting. It is also
relevant to point out that before taking final decision; the
respondent herein by letter dated 26.07.1994 made a
complaint to Hon\022ble the Chief Minister of Haryana about his
difficulty in working as an Accounts Executive with HBPE
which is annexed as Annexure R-5. The complaint makes it
clear that the Accounts Executive had some grievance against
the Member Secretary and the Financial Advisor regarding the
distribution of work. Further materials placed show that on
the basis of the complaint, a preliminary enquiry was
conducted and ultimately no action was taken based on the
same. Finally, as stated earlier, after getting all the required
details regarding the work load and sanctioned staff of HBPE
and on the basis of the report of the Committee, a decision
was taken by the Chairman that there was no requirement for
two posts of Accounts Executives and can be abolished
without affecting the work of the Bureau. Based on the said
decision, the Government while accepting the same accorded
sanction to abolish two temporary posts of Accounts
Executives sanctioned earlier. In those circumstances, it is
impossible to accept the stand of the respondent herein that
the posts of Account Executives were abolished in order to
terminate him from the said service. We are of the view that
the High Court has committed an error in accepting the claim
of the respondent herein.
16) Rejoinder affidavit filed on behalf of the HBPE before this
Court clearly shows the various steps taken by the Committee
and the ultimate decision of the Chairman for reduction of the
staff strength. It is specifically stated in the reply that in
accordance with the instructions of the Government, the
requirement of posts for HBPE has been reviewed from time to
time and various posts have been abolished even after the
decision to abolish two posts of Accounts Executives. The
information about the abolition of the various posts given in
the rejoinder affidavit dated 20.07.2005 is relevant which
reads as under:
S.No.
Name of the Post
No. of posts
Date of abolition
1.
Accounts Executive
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2
31.12.1994
2.
Senior Research Officer
1
29.6.1999
3.
Assistant Research Officer
1
28.8.2000
4.
Asstt. District Attorney
1
1.3.2000
5.
Computer Operator
1
1.6.2001
6.
JSS/Steno Typist
4
31.12.94/22.10.2001
7.
Clerk
1
22.10.2001
8.
Peon
4
31.12.94/22.10.2001
9.
Personnel Advisor
1
14.5.2004
10.
Accountant
1
14.5.2004
It is clear from the materials placed in the rejoinder affidavit
that the Government of Haryana has been making earnest
efforts to control its non-planned expenditure. The rejoinder
affidavit also shows that due to various efforts including the
action taken by the HBPE non-planned expenditure has been
substantially reduced. In the light of the particulars
furnished, we are of the opinion that the decision to abolish
the posts of Accounts Executives was taken on the basis of the
overall assessment of the work load and staff requirement of
the Bureau and the same was finally approved and sanctioned
by the Government and consequent to the said decision, the
service of the respondent herein was terminated. We hold that
the entire action was taken in good faith and there is no
substantial material to arrive at a conclusion that the abolition
of the post was due to revenge against the respondent herein.
17) In the light of the above discussion, we are unable to
accept the conclusion arrived at by the High Court and we are
in agreement with the decision taken by the Bureau and the
Government. Consequently, the orders passed by the High
Court in L.P.A. No. 163 of 1999 dated 16.03.2004 and in
C.W.P. No. 442 of 1995 dated 29.01.1999 are set aside. The
appeal is, accordingly, allowed. There shall be no order as to
costs.