No Fundamental Right Of Employee Violated If Competent Authority Abolishes Promotional Post: Punjab & Haryana High Court
The Punjab & Haryana High Court has held that there will not be a violation of the fundamental right of an employee if the Competent Authority has created or abolished a promotional post.
Justice Jagmohan Bansal said, "A person has right to be considered for promotion against a post. If the Competent Authority has created or abolished a promotional post, the Court cannot hold that there is violation of fundamental right of the candidate to be considered for the said post."
The Court was hearing the plea under Article 226 of the Constitution of India, filed by ASI posted in BSF seeking setting aside of notification dated whereby respondent has revised strength of different cadres including Pharmacist.
As per the revised cadre strength, the State authorities have reduced 72 posts of ASI and 4 posts of Sub-Inspector whereas 4 posts of Inspector and 11 posts of Subedar Major have been increased.
The counsel for the petitioner argued that the respondent had wrongly revised cadre strength. The abolition of 4 posts of Sub Inspector is going to adversely affect her promotional avenues. The right to be considered for promotion is a fundamental right and the abolition of 4 posts is going to violate her fundamental rights guaranteed by Articles 14 and 16 of the Constitution of India.
"There are possibilities that persons who have joined as Sub-Inspector or Assistant Sub-Inspector alongwith petitioner, however, in other cadres may be promoted prior to her. It would be stigmatic and cause dis-repute to her", he added.
After hearing the submissions, the Court said, that the notification cannot be set aside or modified by the Court unless and until, "it is found that there is violation of fundamental rights or it is contrary to statutory provisions or there is patent/manifest illegality."
Reliance was placed on a three-judge Bench of the Supreme Court in 'Official Liquidator Vs. Dayanand and others', [2008], wherein it has categorically held that the creation and abolition of posts, formation and structuring/re-structuring of cadres falls within the domain of the employer.
Perusing the notification, the Court said, "...respondent as per its wisdom has abolished few posts of the rank of Assistant Sub-Inspector and Sub-Inspector whereas increased of the rank of Inspector and Subedar Major."
"The petitioner, at present is working as Assistant Sub-Inspector. The respondent has primarily reduced posts of Assistant Sub-Inspector and increased posts of Inspector and Subedar Major. The increase in posts of Subedar Major and Inspector would ultimately be in her benefit because she will get more opportunities to get promotion," said the judge.
Justice Bansal opined that, "the mere fact that there is reduction in 4 posts of Sub- Inspector is not going to substantially affect her rights. In any case, if two persons are not granted equal opportunity to participate for the purpose of promotion, there can be violation of fundamental right. A person has right to be considered for promotion against a post."
If the Competent Authority has created or abolished a promotional post, the Court cannot hold that there is violation of fundamental right of the candidate to be considered for the said post. The argument of the petitioner could be accepted had there been mala fide intention or patent illegality, added the Court.
It observed further that the petitioner is a part of cadre having 230 posts of Assistant Sub- Inspectors, thus, it cannot be concluded that respondent with intent to deprive her from promotion has reduced posts of Sub-Inspector.
Stating that there is not "any manifest illegality or arbitrariness in the impugned notification warranting interference" the plea was dismissed.
Mr. Sagar Saxena, Advocate and Mr. Divij Datt, Advocate for the petitioner.
Mr. Narender Kumar Vashisht, Sr. Panel Counsel for the respondents-UOI.
ANURADHA v. UNION OF INDIA AND OTHERS
2024 LiveLaw (PH) 232