Sudhir Agarwal, J. - (1.) Heard learned Counsel for the Petitioners and learned Standing Counsel.
(2.) It appears that the Petitioners were appointed as Lab Technician in the pay scale of Rs. 4500 -7000/ -in "Sardar Vallabh Bhai Patel Agricultural and Technical University, Meerut. It further appears that the University proposed some additional posts of Lab Technician in a higher scale of Rs. 5000 -8000 and sent its recommendation to the government but the same has not been acted upon by the government. The Petitioners have sought a mandamus that the government should give sanction for creation of additional post in higher scale.
(3.) It is not in dispute that the Petitioners are not claiming salary on the post of technician in the pay scale in which he was appointed but on a higher post. Whether a particular higher post in a particular pay scale ought to be sanctioned or created or not is within the domain of the competent authority and being legislative in nature, no mandamus can be issued to the authority concerned for creation of the post. This issue has already been decided by a Division Bench of this Court in Dr. Harikant Mishra v/s. State of U.P. and Ors., 2008 (2) ESC 1312, wherein the Division Bench made following observations in para 20, 21, 22 and 23: 20. Considering the right of the Government, as employer, with respect to abolition of post and the consequential termination of service, the Apex Court in N. Ramanatha Pillai v/s. State of Kerala and another, : AIR 1973 SC 2641 in para 36 of the judgment held: 36. 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 or could 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 21. In State of Haryana v/s. Des Raj Sangar and Anr. : 1976 (2) SCC 844 the Court said: 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. 22. The aforesaid view was reiterated in K. Rajendran and Ors. v/s. State of Tamil Nadu and Ors. : AIR 1982 SC 1107. In S.S. Dhanoa v/s. Union of India and others, : AIR 1991 SC 1745 considering the argument that abolition of post and resultant termination causes not only loss in earning livelihood but also cut short the tenure and, therefore, is punitive in nature, the Apex Court rejecting the submission observed that such loss is not unknown in a service career and is one of the exigencies of employment. The creation and abolition of post is the prerogative of the executive. The power to create the posts is unfettered and so also is the power to reduce or abolish them. Recently in Avas Vikas Sansthan and Anr. v/s. Avas Vikas in paras 50 and 59 of the judgment the Court held: It is settled law that the power to abolish any civil post is inherent in every sovereign Government and such abolition will not entail any right on the person holding the abolished post the right to re -employment or to hold the same post. 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. 23. In State of Haryana and Ors. v/s. Navneet Verma (Appeal (Civil) No. 5064 of 2007) decided on 31.10.2007 the Apex Court after referring to N. Ramanatha Pillai (Supra) and Avas Vikas Sansthan (Supra) culled out certain principles with respect to power of Government for abolition of post and the role of the Court warranting interference as under: 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.;