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PETITIONER: THE COMMISSIONER, CORPORATION OF MADRAS

       Vs.

RESPONDENT: MADRAS CORPORATION TEACHERS’ MANDRAM & ORS.

DATE OF JUDGMENT:       08/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 8TH DAY OF NOVEMBER, 1996 Present:                Hon’ble Mr. Justice K. Ramaswamy                Hon’ble Mr. Justice G.B. Pattanaik      R. Mohan  Sr. Adv.  R. Nedumaran, V.G. Pragasam and Ms. Pushpa Rajan, Advs. with him for the appellant      Naveen  R.   Nath  and   S.R.  Bhat,   Advs.  for   the Respondents.                          O R D E R      The following Order of the Court was delivered: Leave granted.      These appeals  by special leave arise against the order of the  Administrative Tribunal, Tamil Nadu passed in OA No. 708/93  and  1685/93  on  August  2,  1994.  The  appellant- Corporation had  adopted a  dual policy  of  appointment  of Education Officers  either by promotion from the subordinate cadre or  appointment  by  deputation  from  the  Government service. It  would appear that the post of Education Officer was upgraded  to the post of Deputy Director and they sought appointment by  transfer of  a Government Officer to fill up the post  of Deputy  Director to  supervise the  educational standards  in   the   Corporation.   The   respondents-Union challenged the said action of the appellant in the tribunal. The Tribunal  while upholding  the power  of the Corporation had directed thus:      "Therefore, a  post in the cadre of      the Corporation  equivalent to  the      District Educational Officer should      be created  to which  persons  from      the Corporation’s  cadre  could  be      appointed and such persons could be      considered after  a minimum  period      of experience  for  advancement  to      the higher  post  in  the  rank  of      Chief Educational  Officer to be in      overall charge of the Corporation’s      Educational Department."      Feeling aggrieved  against this  order, this appeal has been filed.  Shri R.  Mohan, learned  senior counsel for the Corporation, has contended that the creation of the post and

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prescription of  qualifications are  the legal policy of the Government or  the executive  policy of  the Government. The Tribunal cannot  give the  direction to  create a post or to prescribe the  experience as may be required as an incumbent to hold  the post.  We find  that  there  is  force  in  the contention.      Learned counsel  for the  respondents, in fairness, was unable to  meet the contention but he sought to sustain this order on the ground that appointment by transfer affects in- service candidates.  We cannot  go into it because it is not the subject  matter in this case. Under these circumstances, as stated earlier, the question is: whether the Tribunal can give direction  to create a post or to prescribe the minimum qualifications for  the  post?  It  is  well  settled  legal position that  it is  the legal  or executive  policy of the Government  to   create  a   post  or   to   prescribe   the qualifications for the post. the Court or Tribunal is devoid of power  to give  such direction.  The impugned  direction, therefore, is clearly illegal.      The  appeal   are  accordingly   allowed.  But  in  the circumstances without costs.