- (1.) THIS is a petition filed under Article 226 of the Constitution seeking certiorari for quashing the circular dated 19-11-1992 (Annex.-2) issued by the Education Secretary to the Government of Rajasthan. The relevant portion of this circular is quoted below: - "i am directed to refer to your letter No. Estt. I/92/9421/misc. 29 dated 3-9-92 on the subject cited above and to convey approval of the State Govt. for the creation of Ex-cadre posts of Professors for the year 1988 to 1992 to implement the ex-cadre promotion scheme in the University to the extent given below: S. No. Name of faculty No. of Ex-cadre post of Professors 1988 1989 1990 1991 1992 Total 1 Arts. - 2 1 2 1 6 2 Science - 3 3 2 1 9 3 Commerce - - 1 1 - 2 4 Fine Arts - - - 1 - 1 5 Social Science - - 1 - - 1 19 The approval of the creation of above mentioned posts is subject to the following conditions:- 1) The University may separately intimate the actual number of posts created in each faculty after the process of distribution and selection is finalised as per provisions of the Act. 2) When the promotions are finalised the workload will be re-distributed in such a manner as to avoid any direct or indirect expenditure (and consequent State liability) on this account. Specifically there should be no extra appointments on this account and workload will be so adjusted that the total number of teaching staff of the Deptt. remains the same, even after the promotion. 3) THIS would be on the condition that the list of eligible persons have been worked out as per provisions of Sec. 11 of the Rajasthan Universities, Teachers and Officers (Selection for Appointment) 4) The personal promotions granted against ex-cadre posts shall be entirely personal to the teacher concerned and an ex-cadre post to which such persona! promotion is granted cease to exist as soon as the teacher promoted to such a post ceases to hold that post permanently for any reason whatsoever and on his ceasing to hold such ex-cadre post, the original post from which such personal promotion was made of a teacher shall revive. The additional expenditure on these posts will be met out by the University in its overall non-plan budget. THIS issues with the concurrence of F. D. vide their I. D. No. 3474/fs/ 92 dated 17-11-92. "
(2.) AS a result of the aforesaid circular, ex-cadre posts which are 19 in number have been created. These ex-cadre appointments would be made amongst the Readers who are already working in the Rajasthan University. An ex-cadre post has been as there is stagnation and on that account frustration creeps amongst the teachers. On ex-cadre posts in the instant case teachers most of whom put in more than 20 years of service, would be appointed. The State of Rajasthan feeling that exigency of situation demanded creation of ex-cadre posts, it came out with the circular impugned by means of the present writ petition. Section 11 of the Rajasthan Universities' Teachers and Officer (Selection for Appointment) Act. No 18 of 1974 reads as under: "11. Personal promotion against ex-cadre posts: (1) Notwithstanding anything contained in the relevant law or in this Act, the State Government may, in order to provide promotional opportunities to stagnant deserving teachers, create ex-cadre posts of Professors or Readers in each faculty of a University to the extent of one third of eligible persons as on 1st Jan. of each year, (subject, however, to the condition that the total number of ex-cadre posts created of Readers or Professors shall at no point of time exceed one third of the total number of posts of Lecturer or Reader, as the case may be, in any faculty at such time. " Counsel for the petitioner urged that the appointment of Professor should have been from the open market and that would have given a chance of selecting real meritorious teachers on the post of Professors. He contended that the creation of ex-cadre post is a back door entry for undeserving Readers who are not meritorious and did not sincerely work. It is undeniable that as to whether the Readers were stagnating or not is a question to be decided by the State of Rajasthan and the University authorities. Neither is the petitioner entitled to argue that the basis of appointment on the ground of stagnation is malafide or on account of the colourable exercise of power nor we are in a position to Judge. To us it appears that the plea of the petitioner that it was a case of colourable exercise of power has no legs to stand upon. On the facts and circumstances which speak abundantly clear that Readers have been working on the post of teachers for the last more than 20 years. It is nothing else but that stagnation can be legitimately inferred and presumed.
(3.) THE State of Rajasthan, therefore did not exercise the colourable exercise of power by issuing the circular (Annex. 2 ). In fact, the colourable exercise of power is also mala-fide which has to have a very strong footing for being established and accepted in the court. Counsel for the petitioner next urged that appointing teachers on the basis of ex-cadre post the Readers would get undue advantage in the seniority by referring to clause (12) of Section 11 of the aforesaid Act. We are not satisfied with this argument. We have already stated that the Readers are working approximately for the last more than 20 years and if they get the seniority on being selected as Professor, that would not be undue advantage. To quash the Annex. 2 on the ground stated above would be unjustified. ;