N. K. Sodhi, J. - (1.) Petitioner was appointed as an Assistant Librarian in Sri Guru Gobind Singh Senior Secondary School, Sector 35, Chandigarh on a fixed term basis up to October 31, 1989. She had worked earlier as well on the same terms and conditions from November 14, 1987. Her services were, however, terminated with effect from September 30, 1989 and she was given one month pay in lieu of one month notice and the reason for terminating her services was that the Management had decided to abolish the post of Assistant Librarian with immediate effect. Feeling aggrieved by this order of termination, she filed an application under Sub section (4) of Section 3 of the Punjab Aided Schools (Security of Service) Act, 1969 as applicable to the Union Territory of Chandigarh before the Deputy Commissioner challenging the order on the ground that the same was passed mala fide and that the post had been abolished only to dispense with her services. After hearing both the parties, the Deputy Commissioner accepted the application and quashed the order of termination holding that the same was mala fide and he observed as under:- "I have gone through the record of the case, considered the oral as well as written arguments submitted by both the parties. The sequence of events as alleged by the applicant goes to show that there is certainly a mala fide intention in abolishing the post of Assistant Librarian only to remove the applicant from the service. The incident of alleged misbehaviour of Shri M. S. Kohli, Manager of the Institution, occurred on 9.9.89. The father of the applicant brought this incident to the notice of Sh. G. S. Lamba, Chairman of the School Management Committee on 11.9.1989 and made a written complaint addressed to the Staff Secretary of the Institution on 23.9.89 with a copy to the District Education Officer, Union Territory, Chandigarh. The applicant was initially given appointment upto 31.3.88 which was extended upto 31.10.88 and upto 31.10.89 on two occasions. During this period, even two commendation certificates were issued to her by the Principal of this School. As per the terms and conditions of appointment the appointment was upto 31.10.89 and was likely to continue thereafter. The School has been upgraded to run 10+2 classes, by the Central Board of Secondary Education. In these circumstances, there was no occasion with the Management to abolish the post of the Assistant Librarian. The sequence of events leading to the abolition of the post of Assistant Librarian and removal of service from this post before 31.1.1989 establishes mala fide on the part of the Management. Moreover, the order of termination is not merely a simpliciter order of termination. The post of Assistant Librarian has been abolished with the only intention of removing the applicant from service. This case is unreasonable and arbitrary method has been adopted for abolishing the post of Assistant Librarian, at the time when a good maintained library was prima facies functioning and was required for upgradation of this School. In the circumstances the order of termination of services of applicant is punitive in nature." The Management then filed an appeal before the Commissioner being dissatisfied with the order and findings recorded by the Deputy Commissioner. The Commissioner allowed the appeal holding that the Management had the authority to abolish the post of Assistant Librarian and that the order dispensing with her services was, therefore, consequential which, according to him, had to follow once the post was abolished. The Commissioner held that the petitioner had been retrenched and being a retrenched employee she was entitled to be considered for the post if it became available subsequently. Consequently, a direction was issued to the Management in the following terms:- "In these circumstances the order dated 30.9.89 relieving the respondent No. 2 after paying her one month salary in lieu of one month's notice is reasonable. Simultaneously the relieving of respondent No. 2 by virtue of the abolition of the post becomes a case of retrenchment. It is an established policy supported by various judicial pronouncements that if a post was available at the time of retrenchment or becomes available subsequently then the retrenched employee has a right to be considered for that post. Only if the retrenched employee is not eligible or suitable for the available post then the post can be filled by other means. This privilege shall be available to respondent No. 2 also for any post that may be vacant in the Institution or may become available subsequently. The appellant is directed to honour this privilege of the respondent No. 2. with this direction the appeal is accepted and the impugned order dated 18.1.1990 of Deputy Commissioner, U.T., Chandigarh is set aside." This order of the Commissioner was not challenged by either of the parties and the same became final.
(2.) Sri Guru Gobind Singh Senior Secondary School, Sector 35, Chandigarh (for short 'the School') stands affiliated to the Central Board of Secondary Education, Delhi. The Inspection Committee of the Board conducted an inspection of the School in January, 1993 and pointed out, amongst others, the following deficiency:- "Library needs to be furnished adequately and a Librarian to be appointed in a proper pay scale. Particulars of Librarian be sent to this office." This objection was communicated as per letter of July 5, 1993 written by the Board to the Principal of the School. It is common case of the parties that after the post of Assistant Librarian held by the petitioner was abolished there was no Librarian in the School and that earlier too it was the petitioner who was looking after the Library and there was no Librarian. After being told by the Board to appoint a Librarian, the Management of the School issued an advertisement in the Daily Tribune dated......... experienced Librarians with B.A./B.Sc. with degree in Library Science as the qualifications. It was also mentioned in the advertisement that higher qualifications would be preferred and the candidates were required to appear for interview on July 27, 1993 with complete bio-data and testimonials. It was at this stage that the present petition was filed under Article 226 of the Constitution for a mandamus directing the respondents to consider and appoint the petitioner against the post of Librarian which had been advertised. This claim has been made by the petitioner relying on the direction issued by the Commissioner to the Management of the School, the relevant part of which has been reproduced above. It was also contended on behalf of the petitioner that the Management of the School had deliberately prescribed higher qualifications of degree in Library Science only with a view to keep the petitioner out of the zone of consideration as she possesses only a diploma in Library Science. Reference in this regard was made to the Affiliation Bye-laws framed by the Central Board of Secondary Education under which the minimum qualification prescribed for the post of a Librarian is graduation with diploma in Library Science from a recognised institution. When the petition was admitted, the motion Bench restrained the respondents from filling the post of Librarian though it was kept open to them to offer the same to the petitioner.
(3.) In the written statement filed on behalf of the School, it is stated that the petitioner was also considered for the post in question but as she was not eligible she could not be offered the same. It is further stated that it was open to the School to prescribe any qualification higher than the minimum fixed by the Board in its Affiliation Bye-laws. Accordingly, it was contended that the direction given by the Commissioner stands complied with and the action of the Management in not appointing the petitioner is justified. The allegation of mala fides too has been denied. It is pointed out that Ms. Sukhranjan Kaur who has been selected for the post possesses the higher qualification of M.Sc., Lib. Sc.+M. Lib. Sc., whereas the petitioner is only a graduate with diploma in Library Science.;