1999 PLP (C (PLC(CS))

‑‑‑‑ Creation and abolition of posts‑‑‑Government had sole prerogative of creating or abolishing of posts under Government which was an essential ingredient of State power and Executive Authority to run the affairs of the State‑‑‑Such power of Government was neither controlled nor abridged by any legal or Constitutional provision‑‑‑High Court could quash order passed by Government only if it was without lawful authority and of no legal effect‑‑‑Since petitioner could not point out that abolition of post was violative of any law, order passed by High Court dismissing writ petition was without exception. Petitioner in person. Date of hearing: 9th July, 1997. The petitioner Mujahid Hussain Naqvi is Secretary, Information of the Government. He filed a writ petition in the High Court on 12th May, 1997 in which he prayed that the proposed abolition of the post of Additional Chief Secretary (General) may be restrained. However, meanwhile a Government notification was issued whereby the post mentioned above was abolished and in its place a temporary post of Officer on Special Duty carrying the same pay scale (B‑21) as the post of Additional Chief Secretary (General) was created. It is the contention of the petitioner that the Government order was not in fact issued on 10th of May but was issued on 13th of May but, having become cognisant that a writ petition had been filed, the order was pre‑dated. Be that as it may, the writ petition was amended with leave of the Court.

2. The High Court has dismissed the writ petition in limine after taking the view that it is the sole prerogative of the Government to create, convert or abolish any of the posts in light of budgetary provision and other administrative exigencies. The petitioner, who argued the case personally, vehemently contended that the post under discussion has been abolished with mala fide intention and is discriminatory in nature. He also contended that the disputed abolition has adversely affected the prospects of promotion of the present Secretaries to the Government, the petitioner being one of them.

3. After the consideration I am of the view that by holding that the Government has the sole prerogative of creating or abolishing of posts under the Government, the High Court has stated the correct law. The creation or abolition of posts under the Government is an essential ingredient of state power, also known as executive authority, which is exercised to run the affairs of the State. This power is neither controlled nor abridged by any legal or Constitutional provision. Therefore, the Courts cannot arrogate to themselves the function of deciding as to what posts under the Government should be retained and what posts should be abolished. While exercising writ jurisdiction, the High Court can quash an order passed by the Government only if it is without lawful authority and of no legal effect, but the petitioner has not pleaded that any law has been violated in abolishing the disputed post. Even the allegation that the abolition of the post is mala fide and discriminatory has been made in vacuum without any specific allegation and I have no hesitation in rejecting it.

4. The High Court has also held that if the petitioner has any grievance he may approach the Service Tribunal. The petitioner also objected to this ground by contending that the Service Tribunal cannot adjudicate upon the validity or otherwise of the abolition of the post. In view of the clear finding given above I do not feel that it is necessary to decide this question in this petition. It is, therefore, left to be open to be decided where it is necessary. There being no force in the petition, leave to appeal is refused. H.B.T./327/SC (AJ&K) Petition dismissed.