Judgment:
N.A. Britto, J.
1. Challenge in this Writ Petition is to the order dated 1.4.2002 issued by the Secretary of the Goa Legislative Secretariat.
2. The petitioners joined as L.D.Cs in the then Goa Legislative Department on 23.12.1987 and 2.9.1982 respectively, and, thereafter they were promoted twice. Both became U.D.Cs on 3.5.1993 and 1.6.1989 respectively. By order dated 8.3.1995 their posts were re-designated. Thus U.D.Cs became Assistants. Later, both of them became Senior Assistants on 28.8.2000 and 3.5.1993 respectively and were possibly looking forward to become Section Officers (Superintendents) when the impugned order came to be issued on 1.4.2002 by which two posts of Section Officers, one post of Reporter and two posts of Senior Assistants were surrendered and in their place six posts of Assistants were created. The order impugned in this petition clearly mentions that the creation of six posts of Assistants in the pay scale shown therein would be met from the savings resulted out of surrender of the posts and that there will not be any additional expenditure on account of surrender and creation of posts.
3. The case of the petitioners is that the recruitment and the conditions of their service are governed by the Goa Legislature Secretariat (Recruitment and Conditions of Service) Rules, 1988, which have been made by the Governor of Goa in consultation with the Speaker of Legislative Assembly in exercise of powers conferred by Clause (3) of Article 187 of the Constitution of India. It is their case that the impugned order is arbitrary, illegal and unconstitutional and any creation or abolition of the posts had to be done by the Governor in the exercise of the powers conferred under Article 187(3) of the Constitution. Further, it is their case that the impugned order adversely reduces their promotional avenues and also changes the conditions of service at the time when they were eligible to the said posts of Section Officers which promotion is denied to them to the next post of Section Officers. Subsequently, both have been promoted on 17.2.2005 to Section Officers, during the pendency of this petition.
4. The Secretary to the now Legislature Secretariat has filed his affidavit, and, has stated that the abolition of any posts or creation of new posts is right of the administration and that by abolition of two posts of Section Officers, the petitioners' service conditions are not changed nor the Recruitment Rules are touched in any manner. He has further stated that the decision to abolish the two posts of Section Officers alongwith one post of Reporter and two posts of Senior Assistants is purely an administrative policy decision which was taken for rationalization of posts considering the requirements of staff in the State Secretariat for efficient carrying of duties in public interest. It is stated that in any establishment, the structure of work force is organized in hierarchical manner in a pyramidal shape where the number of posts in feeder grade is higher than the number of posts in promotional grade, but in case of Goa State Legislature, staffing pattern was uneven, illogical and irrational. The posts in the Goa State Legislature have been set out in para 3 of the affidavit in reply. For the purpose of this petition, it is not necessary to reproduce the same, right now. It is further stated that there were thirteen Junior Assistants in the promotional grade but there were only two posts of Assistants. It is stated that there were seven posts of Senior Assistants in promotional grade. Further, there were ten posts of Section Officers which staffing pattern is an illogical structure. Therefore, policy decision was taken to rationalize the posts and to bring harmony with work load and required posts and thus two posts of Section officers, one post of Reporter and two posts of Senior Assistants were identified for abolition, and in lieu thereof, six posts of Assistants were created without involving any additional financial burden and this rationalization of posts was placed before the Board constituted under the Goa Legislature (Recruitment and Conditions of Service) Rules, 1988 and was approved by the said Board and consequently the order dated 1.4.2002 was issued. The posts in the Secretariat after rationalization have been set out in para 4 of the affidavit, and, again we do not propose to reproduce them herein. It is stated that after rationalization also, desired pyramidal structure is not brought about and a further work study will be commissioned to know how many more posts at different levels can be abolished/created and through what methodology the posts can be filled so that the rationalization of the posts in the organization is completed in all perfection for effectively supporting the Goa Legislative Assembly and its various committees and a further rationalization will involve creation of more number of posts and currently, proposals involving additional financial expenditure are not taken up as fresh budgetary proposals are not being finalized by the Government in view of elections round the corner and such proposals will be taken up when a new Assembly and a new Government takes place. In para 6 of the affidavit in reply details of various ad-hoc Committees, Standing Committees namely Public Accounts Committee, etc. have been set out and again they are not required to be reproduced herein for the purpose of this petition. It is further stated that consequent upon the creation of six vacancies in the post of Assistants (UDCs) through order dated 1.4.2002, the Department promoted several Junior Assistants (LDCs) to the posts of Assistants (UDCs) who were stagnating in Junior Assistant's posts for periods ranging from ten to thirteen years. Their names have been given in para 11 of the said affidavit. The Department has denied that their action is arbitrary, illegal and unconstitutional or that the Board had no powers to abolish or create posts.
5. At the time of hearing of this petition, Shri Lawande, Learned Counsel on behalf of the petitioners, conceded that ex-post facto sanction of the Government was taken, which according to the Learned Counsel, means was necessary, but the same would not benefit the case of the respondents in view of what has been stated by this Court in the case of Harakchand Misirimal Solanki v. The Collector, Collector Office 2009 (1) ALL MR 799. Learned Counsel has also referred to Page 1154 of Swamy's-Establishment and Administration and submitted that posts beyond the prescribed scales of personal staff admissible to ministers, etc. cannot be created except ofter obtaining prior approval of the Ministry of Finance and Department of Personnel.
6. Learned Counsel further points out that a false statement is made by respondent No. 4, the Secretary by stating that the post of Joint Secretary had lapsed when in fact that post was very much in existence. It is the contention of the Learned Counsel that the subsequent act of giving ex-post facto sanction could not have validated the action taken by the Secretariat of abolishing the said posts of Section Officers, Reporter and Senior Assistant and another and creating those of Assistants.
7. In the case of Harakchand Misirimal Solanki , the Division Bench of this Court observed as follows:
35. These steps that were taken have triggered of another debate between the parties viz.
Whether the Commissioner could have granted such post facto sanction and that too with retrospective effect, especially when, these petitions were part-heard before this Court.
It is the contention of the petitioners firstly that such ex-post facto sanction could not have been granted by the Commissioner and secondly that the Commissioner did so without application of mind. It is also further contended that various steps are required to be taken under the said Act in a chronological sequence only and therefore, after declaration of award in a post-facto manner, steps cannot be taken as contemplated by under Section 7, which if permitted, makes a mockery of the provisions of the Land Acquisition Act.
59. The Petitioners, without disputing the aforesaid legal aspects of the matter, have responded to the aforesaid submission of the learned AGP by contending that various steps laid down by the provisions of the said Act are required to be followed in the same sequence as is provided by the said Act. Our attention has been drawn to the specific language used by the provisions of Section 8 onwards, such as 'thereupon' etc. to buttress this contention and to further submit that grant of such a post facto sanction runs counter to the scheme of the said Act. It is therefore submitted that such order of the commissioner is unsustainable and that it cannot cure the inherent defect that has crept in the acquisition proceedings. In this regard reliance is placed on the following Judgment of the Division Bench of this Court.
Ramrao S/o. Pralhadrao Deshmukh v. Godavari W/o. Ramrao Deshmukh : 2008(2) Mh. L.J. 534 (Paragraph 19).
8. In our view, the observations of the Learned Division Bench in the above decision have got to be restricted to the scheme of Sections 4, 6 and 7 of the Land Acquisition Act, 1984. As can be seen from the very Judgment of the Learned Division Bench, the Apex Court in several Judgments has held that ratification means making valid an act already done and that the subsequent ratification of an act already done is equitable to prior authority to perform such an act; ratification validates an invalid act retrospectively. In Maharashtra State Mining Corporation v. Sunil : AIR 2006 SC 1923 the Apex Court (speaking through three Learned Judges) stated that ratification assumes an invalid act which is retrospectively validated. The same principle was reiterated in Goa Shipyard Ltd. v. Babu Thomas : 2007 10 SCC 662. The Apex Court held that the High Court was wrong in holding that such an invalid act cannot be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur namely, ' a subsequent ratification of an act is equivalent to a prior authority to perform such act'. Ratification assumes an invalid act which is retrospectively validated.
9. Ten posts of Section Officers/Superintendents at the top for thirteen L.D.Cs/Junior Assistants at the bottom must have been an envy of other Departments of the Government particularly outside Secretariat where promotions to Sections Officers/Superintendents hardly come about and it is for that reason that the Board thought it fit to rationalize the posts by reducing the posts of Section Officers at the top and creating more posts in between so that the persons on the lower rung of the ladder were able to get promotions. How many posts and with what designations there should be in a particular Department is a concern of that Department and is a matter of policy and administrative necessity of that Department, and, the Board constituted under the Goa Legislature Secretariat (Recruitment and Conditions of Service) Rules, 1988 decided that there should be less number of posts at the top, that is to say, of Section Officers, and there should be six more posts of Assistants against two earlier available so that thirteen LDCs/Junior Assistants who were stagnating for several years for want of promotion could be promoted and in doing that we find that the action of the Department is entirely logical and cannot be termed either to be arbitrary or illegal. The petitioners have not attributed any bad faith for surrender of the said posts. Even after rationalization, the position which emerges is far from pyramidal. It can be seen at a glance. It has always been in the form more of an inverted pyramid, if we may use that expression. We really wonder who created the uneven illogical and irrational situation of having ten posts of Section Officers at the top for thirteen Junior Assistants at the bottom. We make it clear that those are not our words but those of the Secretary, Legislature.
Before AfterSection Officers - 10 Section Officers - 8Senior Assistants - 7 Senior Assistants - 5Assistants - 2 Assistants - 8Junior Assistants - 13 Junior Assistants - 13
It is well settled that creation or abolition of posts or for that matter surrender of posts is entirely a discretion of the Government as long as it is done in good faith and the Courts cannot interfere with the same. In State of Haryana v. Shri Des Raj Sangar and Anr. : (1976) 2 SCC 844 the Apex Court held that whether the 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, 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. In that case the post was abolished as an economy measure to meet financial stringency for administrative reasons and the Apex Court held that the Court cannot review such reasons and the fact that the post to be abolished was held by a person who is confirmed in that post and the post which was not abolished was held by a person who was 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. In Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. (2008) 1 SCC 683 the Apex Court has held that the creation and sanction of posts is the prerogative of the executive and legislative authorities and not of the Courts. Likewise, in State of Haryana v. Navneet Verma : (2008) 2 SCC 65, the Apex Court has reiterated that the power to create or abolish a post rests with the Government; whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity; creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public; the Court is 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 fides, legal or factual; as long as the decision to abolish the post is taken in good faith in the absence of any material, interference by the Court is not warranted.
10. The impugned order itself mentions that the surrender of two posts of Section Officers, one post of reporter and two posts of Senior Assistants against the creation of six posts of Assistants would not involve any financial expenditure and there is no challenge to this factual position and if that be the case one fails to understand as to why the Government post facto sanction was at all necessary when the said creation otherwise did not involve any financial expenditure. Presumably, it was taken to meet the requirement of Rule 10 of the Goa Delegation of Financial Rules, 1997. In any event, it was given expost facto. The reduction or surrender of some posts and creation of other posts in this case was done by the Board and with subsequent sanction given by the Government by letter dated 5.12.2003 (at page 58). Creation of posts and or their abolition is a discretion of the employer and was done in this case to provide promotional avenues to those at the bottom of the cadre and for a greater administrative necessity. There is absolutely no merit in this petition which is wholly misconceived. We, therefore, proceed to dismiss the same. Rule discharged, with costs.