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CASE NO.: Appeal (civil)  4152 of 2002

PETITIONER: CHAIRMAN, AD-HOC COMMITTEE & ANR

RESPONDENT: LILA PAL & ORS

DATE OF JUDGMENT: 12/03/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT O R D E R

CIVIL APPEAL NO. 4152 OF 2002

       This appeal is filed by the authority against the order passed by the Division Bench   directing creation of additional post to accommodate the respondent No.1.

       Briefly stated, the facts are as follows.

       Respondent No.1 was appointed on contingent basis.  The case of the appellant is  that the appointment by the Managing Committee of the Duff Primary School at  Chinsurah was against non-existing post.  Be that as it may be.  We are not concerned  with this.  Suffice it to say, the respondent was stated to have been appointed on  contingent paid basis of Rs.50/-.  It appears that repeated request for creation of post  has not produced any result and, therefore, the respondent No.1 filed a writ petition  before the learned single Judge.  The learned single Judge disposed of the writ petition  with a direction to the school authority to pursue the matter for sanction of an additional  post on the basis of  increase roll strength.   .......2.

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Aggrieved thereby, the authority, the appellant herein, filed an appeal MAT  No.3956/1999.  The Division Bench disposed of the appeal by impugned order in terms  of the following:-         "We, therefore, direct that the creation of the  additional post shall be made and completed in all respects  within three months hereof positively and the writ petitioner’s  appointment in the said post shall be completed within six  months hereof, within which time the writ petitioner shall  commence drawing her regular monthly and other  emoluments."

       Aggrieved thereby, the authority has preferred this appeal by special leave.

       The short question on the basis of which we would allow this appeal is that the  creation of a post is within the domain of the executive authority.  It is not the function  of the Courts to create posts. There is catena of decision of this Court on this point.   Avoiding multiplicity, a recent judgment of this Court was delivered in Divisional  Manager, Aravali Golf Club & Anr. Vs. Chander Hass & Anr., 2007 (14) Scale 1.  This  Court clearly pointed out in paragraph 15 of its judgment that the Court cannot direct  the creation of posts.  Creation and sanction of posts is a prerogative of the executive or  legislative   authorities  and  the  Court  cannot arrogate to  ......3.

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itself this purely executive or legislative function, and direct creation of posts in any  organization.

       In the facts and circumstances as stated above, both the learned single Judge and th e  Division Bench were not justified in directing for creation of a post.  Both the orders of  the learned single Judge and of the Division Bench are set aside.  This appeal is allowed.   No costs.

       After the allowing of this appeal, Mr. Ranjan Mukherjee, learned counsel for  respondent No.1, submits that he would like to file a representation before the  appropriate authority.  It is upto him to do so.  We have nothing to say.