IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.19750 of 2009 1.M.J.Manohar 2.V.Sowmini 3.K.J.Malathi 4.B.Gopinathan 5.G.Sivakumar 6.J.Ramesh Babu 7.R.Latha 8.A.Hemalatha 9.S.D.Nalini 10.R.Revathy 11.R.Geetha 12.N.Sumathi 13.N.Eswari 14.R.Varadarajan ...Petitioners Vs. 1.The Chairman, Chennai Port Trust, Administrative Office, Rajaji Salai, Chennai - 600 001. 2.The Secretary, Ministry of Shipping, Transport Bhavan, No.1, Parliament Street, New Delhi - 110 001. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, to call for the records of the respondent in No.A2/12250/00/S dated 06.08.2002 and quash the same and consequently direct the respondent to restore the Promotional Posts of Senior Assistants in the Civil Engineering Department of the respondents. For Petitioner : Mr.P.J.Rishikesh For Respondents : Mr.R.Karthikeyan for R1 O R D E R The petitioners who are working as Junior Assistants in the Civil Engineering Department of Chennai Port Trust have come https://hcservices.ecourts.gov.in/hcservices/ forward to challenge an order dated 06.08.2002 passed by the first respondent. 2. By the impugned communication, the first respondent had directed the Heads of Departments to examine the possibility of abolition of the posts lying vacant for more than one year as on 01.07.2002 and forward their recommendation on or before 14.08.2002. In that communication, he had observed that the Heads of Departments were requested to review the retention of 277 posts which were lying vacant as on 01.10.2001 for more than one year. Based on the particulars furnished by the Heads of Departments and as decided at the HODs meeting held on 22.07.2002, 66 posts lying vacant for more than one year in different departments out of 277 posts which were retained on 01.10.2001 were abolished. 3. The petitioner after seeking to set aside the said order seeks for a direction to restore the promotional posts of Senior Assistants in the Civil Engineering Department. 4. The writ petition was admitted on 20.08.2010. 5. It is the case of the petitioners that after completing probation in the post of Junior Assistant, one is eligible for promotion to the post of Senior Assistant /Store Supervisor subject to the availability of vacancy in this cadre. This is the normal procedure followed by various departments within the Chennai Port Trust. Accordingly, 35 junior Assistants were promoted as Senior Assistants in the Accounts Department and 14 Store Assistants were promoted as Store Supervisor in the Stores Department. When the petitioners were legitimately expecting similar promotions in the Civil Engineering Department, to their shock the first respondent had abolished 18 vacancies in the post of Senior Assistant. By the abolition, the future prospect and career of the employees have come to a standstill. It was contended that the abolition was arbitrary and violative of Article 14 of the Constitution. It was also contended that abolition of a post can be done only in matters of exigencies and administrative necessity. While promotional posts are still available in Accounts Department and Stores Department, abolishing the promotional post in the Civil Engineering Department is arbitrary. 6. In response to the contentions raised by the petitioners, the then Chief Engineer, Chennai Port Trust had filed a counter affidavit dated Nil (March 2011) together with typed set of documents. It was stated that the second respondent Government of India by communication dated 09.062000 had issued a Revised Estimates of budget for the year 1999-2000 and Budget Estimates for 2000-2001 in respect of Chennai Port Trust and the Central Government under Section 98(7) of the Major Port Trusts Act, 1963 sanctioned the Revenue and Capital Budget Estimates of the Chennai Port Trust, wherein it was stated that that all posts lying vacant for over one year should be abolished and the action taken in this regard should be intimated to the Ministry within a month. It was also communicated from the Ministry of Surface Transport on https://hcservices.ecourts.gov.in/hcservices/ 09.09.2000 that consequent upon the reduction in the age of retirement of the Port Trust Employees from 60 to 58 years, all recruitments to entry level posts should be stopped. It was found that the efficiency of the Indian Ports were not satisfactory and it is the cause for reduction of man power. The port Trust was also directed that the resultant vacancies at the entry level were not filled up. A further communication was sent by Ministry of Shipping on 19.11.2001 stating that all posts lying vacant for more than one year were to be treated as abolished as per the instructions of Ministry of Finance. 7. It is only pursuant to the said communications, the impugned circular came to be issued by the first respondent on 06.08.2002. In the Annexure to the said circular, it is seen that there are vacancies in other departments in respect of other posts. But it is only in the case of Engineering Department, there are 18 vacancies in the post of Senior Assistants. Subsequent to their representation of the petitioners, on 20.03.2009, they were also informed that after abolishing all the posts of Senior Assistants during the year 2003, it cannot be revived. Therefore, It was contended by the respondents that the 18 posts of Senior Assistants in the Civil Engineering which were found to be vacant for more than one year was abolished even before the petitioners' promotion to the post of Junior Assistant. 8. However, Mr.P.J.Rishikesh, learned counsel for the petitioner referred to the judgment of the Supreme Court in State of Tripura and others v. K.K. Roy reported in (2004) 9 SCC 65 and contended that promotion is a normal incidence of service and relied upon the following passage found in paragraph 6, which is as follows:- "6. ....Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the appellant should have followed the said principle." 9. The learned counsel also referred to the judgment of the Supreme Court in Food Corporation of India and others v. Parashotam Das Bansal reported in (2008) 5 SCC 100 to contend that an employee of a State though not have any fundamental right of promotion but as a right to be considered. Promotion is a normal incidence of service. He relied on the following passages found in Paragraphs 12 and 13, which is as follows:- "12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting https://hcservices.ecourts.gov.in/hcservices/ in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country." 10. In the present case, the case of the petitioners is not for creation of any promotional avenue since they already have promotional avenue to the next higher post. 11. The contention raised by the petitioners was that the abolition of posts by the Port Trust which were not made use of for more than one year as there was a direction by the Central Government to abolish such of those posts so that the budgetary provision are not unduly drained is arbitrary. 12. The Supreme Court vide its judgment in K.Rajendran and others v. State of T.N. And others reported in (1982) 2 SCC 273 has held that the Government has power to abolish posts and the same cannot be questioned by a Government Servant. The following passages found in paragraphs 12, 30 and 32 may be usefully extracted below:- "12. The power to abolish a civil post is inherent in the right to create it. The Government has always the power, subject, of course, to the constitutional provisions, to reorganise a department to provide efficiency and to bring about economy. It can abolish an office or post in good faith. The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent. 30. The question whether Article 311(2) would be contravened if a government servant holding a civil post substantively lost his employment by reason of the abolition of the post held by him directly arose for consideration before this Court in M. Ramanatha Pillai v. State of Kerala9. Two points were examined in that case (i) whether the Government had a right to abolish a post in a service, and (ii) whether abolition of a post was dismissal or removal within the meaning of Article 311 of the Constitution. The Court held that a post could be abolished in good faith but the order abolishing the post might lose its effective character if it was established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2). After considering the effect of the decisions in Parshotam Lal Dhingra case4, Champaklal Chimanlal Shah v. Union of India10, Moti Ram Deka case5, Satish Chandra Anand v. Union of India11 and https://hcservices.ecourts.gov.in/hcservices/ Shyam Lal v. State of U.P. and Union of India12, this Court observed in this case at SCR p. 526 thus: [SCC p. 660, para 36: SCC (L&S) p. 570] "The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post the government servant who was holding the post would be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post. 32. The above view was followed by this Court in State of Haryana v. Des Raj Sangar13 to which one of us (Fazal Ali, J.) was a party. Khanna, J. speaking for the Court observed at SCR pages 1037-38 thus: (SCC pp. 847, para 7) "Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311...." https://hcservices.ecourts.gov.in/hcservices/ 13. In the light of the above, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar svki To 1.The Chairman, Chennai Port Trust, Administrative Office, Rajaji Salai, Chennai - 600 001. 2.The Secretary, Ministry of Shipping, Transport Bhavan, No.1, Parliament Street, New Delhi - 110 001. 1 cc To Mr.P.J.Rishkeesh, Advocate, SR.49295 1 cc To Mr.R.Balakrishnan, Advocate, SR.49118 ORDER IN W.P.No.19750 of 2009 KSJ(CO) RH (29.8.11) https://hcservices.ecourts.gov.in/hcservices/