R. M. Sahai, J. - (1.) ABOLITION of post is inherent right of the authority which has a right to create it. But exercise of power must be in good faith, bonafide and to sub-serve the public interest. Whether the Director of Education while abolishing the post of lecturer in Chemistry in Kisan Degree College Simbhaoli, district Ghaziabad adhered to this norm is the short question that arises for consideration in this petition filed by a person who has been acting as Chemistry lecturer in aforesaid college with a short break once, for nearly nine years.
(2.) IN 1977 a leave vacancy arose against which petitioner was appointed under Section 31 (4) (d) of U. P. State Universities Act, 1973, after facing selection committee and approval of Vice-Chancellor. He continued to work from October 1977 to July 1981. IN June 1982 another leave vacancy arose and the petitioner was again appointed with approval of the Vice-Chancellor. IN June 1985 the college wrote a letter to the Director for creating an additional post in Agricultural Chemistry. IN November, 1985 it wrote another letter giving details of work load of 1985-86 and requested for creation of one more post of lecturer in pure Chemistry. It was pointed out that such a lecturer could easily carry on work of lecturer of Agricultural Chemistry as well. It was further clarified that in case post of lecturer in Chemistry was sanctioned then college shall give-up its claim for appointment of lecturer in Agricultural Chemistry. IN February 1986 the Director of Education sanctioned the post of lecturer in Chemistry. On 20th February, the committee of management passed resolution appointing petitioner in the post in accordance with Section 31 (3) (b) of the Act. This sanction, however, was only till 1st July, 1986. IN March, 1986 the college sent another letter giving details about number of students etc. and requested for extension of the post of petitioner. The Director, however, issued a letter on 20th May, 1986 that in view of reduced work load it was not possible to continue the post of lecturer in Chemistry after 1st July, 1986. IN June, 1986 the college sent another letter expressing its surprise about reduction of work load. It gave details of students, number of periods a lecturer was to undertake etc. and pointed out that the college needed five lecturers. And if the fifth post which was held by petitioner was not sanctioned then there shall be a shortfall of thirty periods which it was impossible to make good. The letter pointed out that in B. Sc. Agriculture Samanya Chemistry, Muda Chemistry, Bio Chemistry and Dairy Chemistry were taught. And the qualifications for a lecturer of B. Sc. (Ag) for teaching Chemistry were the same as of lecturer in pure Chemistry. Therefore, the post held by petitioner who has been working in the college satisfactorily with good results should not be abolished. The letter further pointed out that students of Chemistry were increasing every year in the college. The Director however did not consider it necessary to reply this letter. But justified its order of abolition of post in the counter-affidavit because the sanction for the post having been given in pursuance to letter sent by college in June 1985 it was for Agricultural Chemistry and the college could not have treated it for pure Chemistry. It also adheres to its stand that only three lecturers were needed in pure Chemistry without saying a word about the requirement of one teacher in Agricultural Chemistry and the qualification for the two namely a lecturer in B. Sc. Agriculture and pure Chemistry for teaching pure Chemistry were same. Sanction of post in a Degree college under State Universities Act is function entrusted to Director of Education. This depends on the work-load and number of periods for which norms have already been prescribed. From a perusal of number of students and periods which a lecturer in Chemistry is expected to take in a week and the figures supplied by opposite parties it appears there was necessity of three lecturers in pure Chemistry and two in Agricultural Chemistry. Out of these three were working in Chemistry and one in Agricultural Chemistry. The necessity, therefore, of one post was there. It was in Agricultural Chemistry. The college, however, had written a letter in November, 1985 that if sanction is given for creation of a post in pure Chemistry then it would serve purpose of the college as lecturer who shall be appointed in pure Chemistry shall teach Chemistry not only to those students who were of pure Chemistry but also of Agricultural Chemistry. Both these letters had been received by the Director and they were considered before creating post, for lecturer in pure Chemistry in February 1986. It could not be deemed to be a post of lecturer in Agricultural Chemistry simply because it was in reference to letter of June 1985. What made the Director go back on letter dated 20th February, 1986 is not clear when qualifications are same, need of a second lecturer, may be in Agricultural Chemistry, is not denied and the college is not demanding any lecturer in excess of what it requires namely five lecturers for Chemistry in all. Further from letter dated 17th July, 1980 it is apparent that posts of lecturer in physics department was created on condition that no other post shall be created in Agriculture Department. In rejoinder-affidavit it has been mentioned that similar request of the college in respect of a post in Botany was accepted in 1984. It is stated that three periods in Botany were extra and twelve periods in Agricultural Botany, therefore, a post of lecturer in Botany was created to cover up for both the departments. The college, therefore, did not commit any error or mistake in requesting Director of Education to create post in Chemistry department instead in Agricultural Chemistry. The necessity of students and requirement of teachers could best be decided by college itself, concern of the Director primarily is that surplus of excess appointments are not made so that Government Exchequer is not put to strain. When Director sanctioned post of lecturer in pure Chemistry he did not commit any error nor did he act in violation of any provisions. Rather it was proper. The norms provided for creation of post are only guidelines which can be relaxed, considering exigency or necessity of students in college. In any case the post having been created it should have been abolished in exceptional circumstances. Otherwise the action becomes bereft of reason. The action of the Director cannot in the circumstances be said to be in good faith. Such action cannot be upheld in law. That good faith in such matters is a question of law, which is open to judicial review is settled by Supreme Court in K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107.
(3.) ANOTHER stand of the Director that petitioner cannot claim benefit of Section 31 (3) (b) of State Universities Act as he did not face any selection committee, when he was appointed in leave vacancy in 1982 also does not have any substance. Section 31 (3) (b) reads as under :- " (b) Where before or after the commencement of the Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee : Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously, for a period of not less than one year after his appointment made after reference to a Selection Committee ; Provided further that appointment in a substantive capacity under this clause of a teacher who had served, before such appointment, continuously for a period of less than two years shall be on probation for one year which may be extended for a period not exceeding one year, and the provisions of sub-section (2) shall apply accordingly. " It does not require that a teacher who has been appointed against a leave vacancy likely to last for more than six months after facing a selection committee constituted under the Act shall have to be appointed or face selection committee every time a leave vacancy arises. Therefore, the petitioner could have been appointed under Sec. 31 (3) (b) in 1982 as he had faced selection committee when he was appointed in earlier vacancy. Since he fulfilled all other requirements there does not appear any reason to hold that the resolution of committee of management appointing petitioner substantively when regular post was created in 1986 committed any error of law. For reasons stated above this petition succeeds and is allowed. The order abolishing the post of lecturer in Chemistry is quashed. A direction is issued to the Director of Education to pass fresh orders within three weeks from the date a copy of this order is produced in light of what has been stated above. There shall be no order as to costs. Petition allowed.;