# M. Ramanatha Pillai v. The State of

- **Citation:** High Court of Judicature at Allahabad #39498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-01-13
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-ramanatha-pillai-v-the-state-of-39498
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
86
Director of the Centre issued two orders dated
13.1.1998 abolishing the post and terminating
the contractual appointment of the petitioner.

10. In N.C. Singh vs. Union of India, AIR
1980 SC 1255 the Supreme Court observed
(vide paragraph 18): "Creation and abolition
of posts is a matter of government policy, and
every Sovereign Government has this power
in the interest and necessity of internal
administration. The Creation or abolition of a
post is dictated by policy decision, exigencies
of circumstances and administrative necessity
(see M. Ramanatha Pillai vs. The State of
Kerala, AIR 1973 SC 2641)".

11. In K. Rajendran vs. State of Tamil
Nadu, AIR 1982 SC 1107 it was held that
abolition
of
a
post
did
not
involve
punishment, and hence Article 311(2) was not
attracted. In Mathuresh Chand vs. U.P. Public
Service Tribunal, 1999(81) FLR 322 a
division bench of this Court held that
abolition of a post is a valid ground for
termination of service of even a permanent
employee.

12. Since the decision of the post appears
to have been passed on administrative and
financial grounds this Court cannot interfere
with the same. There is a financial crisis in the
country and the court should not interfere in
the authorities endeavour to bring down their
expenses. Hence this is not a fit case for
interference
under
Article
226
of
the
Constitution.

13. We are not going into question
whether the Centre is an instrumentally of the
State under Article 12 of the Constitution or
not as we are dismissing the petition on the
ground mentioned above.

However,
we
recommend
to
the
petitioner's parent department (the Nigam) to
re-employ the petitioner considering the fact
that his post in the centre has been abolished.
Petition Dismissed.

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By the Court

1. This special appeal has been filed
against the order dated 18 September 1995, in
1ALL] Suresh Chandra Mishra V. D.I.O.S, Jhansi and others

87
writ petition no. 29083 of 1991:Krishna
Dutt Mishra v. The District Inspector of
Schools and four others. The contesting
respondent in the writ petition, respondent
no.4, is Suresh Chandra Mishra, appellate
before this court. The memorandum of writ
petition described him as an "illegally
appointed as Lecturer in Civics in Sri Laxman
Das Inter College, Jhansi."

2. In so far as the issue on facts is
concerned, it is clear. On the post of Lecturer
in Civics there was a vacancy on 30 June
1990. This was one Dwarika Prasad Sarawagi.
The process of intimating the vacancy to the
Commission
had
been
made
by
the
Committee
of
Management,
but
no
communication had been received within one
stipulated period. Thus, the Committee of
Management set about to fill the post on ad
hoc basis until a candidate duly selected was
returned by the Commission. On whoever
may be appointed until a candidate from the
Commission arrives, his status would be ad
hoc. On this aspect, also, there is no issue.

3. Between the appellant, who was the
contesting respondent in the writ petition,
Suresh Chandra Mishra, and the petitioner,
Krishna Dutt Mishra (respondent in this
appeal), there is an issue. The contention on
behalf of the appellant as raised by Mr. Ashok
Khare Advocate, is that the process of filing a
vacancy in the circumstances, as in the
present case, permits the Committee of
Management to fill the post by promotion or
from the outside. This contention is disputed
by counsel for the petitioner-respondent, Dr.
R.G. Padia, whose contention is that the post
can be filled only by promotion. The order of
the learned Judge and the direction issued is
also, to the effect, as has been contended by
the
petitioner-
respondent.
The
Court
considers it appropriate that the order of the
learned Judge be reproduced :

"This writ petition has been filed against
the
impugned
order
darted
24.1.1991
(annexure 10 to the writ petition).

4. I have heard Dr. R.G.Padia, learned
counsel for the petitioner and Sri A.D. Tiwari,
learned counsel for the respondents No.4. The
short controversy in this case is regarding
appointment of lecturer in Sri Laxman Das
Damelay Inter College, Mauranipur, District
Jhansi. The college has appointed respondent
No.4 by direct recruitment on the said post.
The contention of the petitioner is that this
post has to be filled up by promotion. The
Full Bench of this court in Radha Raizada Vs.
Committee of Management 1994(3) UPLBEC
1551 has held that so far as adhoc
appointment is concerned, it should be by
filling up by promotion from the lower post
not by direct recruitment. Since petitioner was
admittedly in the L.T. Grade Teacher and was
eligible and he should have been considered
for promotion as Lecturer in Civics in the
college and the respondent No. 4 could not
have been validily appointed by direct
recruitment.

5. In the circumstances this writ petition is
allowed and the impugned order dated
24.1.1991 of the D.I.O.S. approving the
appointment of respondent No. 4 is quashed.
The Committee of Management should know
consider the petitioner as well as other eligible
candidates for promotion in the institution for
the post of Lecturer in civics and forward the
papers to the D.I.O.S. for grant of approval
within six weeks from the date of production
a certified copies of this order before him
after hearing the parties concerned. Petition
is allowed. No. order as to costs."

6. On both sides, whether the appellant or
the respondent in this appeal, reliance is
placed on the same case. While the appellant
contends
that,
a
candidate
from
the
Commission has yet to arrive, recruitment can
be made both ways, internally and externally.
On behalf of the respondent, it is emphatically
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
88
argued that an outsider has no place and the
vacancy can be filled by promotion only.

7. The only aspect which is to be resolved
is whether the learned Judge, on the case
which had been cited, had left the field open
or had taken the view that this vacancy is
closed for recruitment by promotion only.

In
the
judgement
which
has
been
impugned, it is the later aspect.

8. The case which is relied upon by
learned counsel for the parties is the Full
bench decision in re. Radha Raizada and
others
v.
Committee
of
Management,
Vidyawati Darbari Girls Inter College and
others.1 Reliance is placed on behalf of the
petitioner-respondent
on
paragraph
39.
Reliance is also placed by counsel for the
appellant on the same paragraph with the
contention that the entire perspective may be
seen in objectivity.

9. In the circumstances, this Court is
reproducing paragraph 39 :

"39.Paragraph 5 of the First Removal of
Difficulties Order provides that where any
vacancy cannot be filled by promotion under
paragraph 4 of the order, same may be filled
direct recruitment. Thus, it is mandatory on
the part of the Management to first up the
vacancy by promotion on the basis of
seniority alone. This method has to be has to
be resorted to as the teachers are available in
the institute and any other method of
recruitment may cause disturbance in teaching
of the institution which may affect the career
of students. Another reason why the vacancy
has to be filled by ad hoc appointment by
promotion is that it is a short term
appointment in the sense that shortly a duly
selected teacher would be available for
appointment against the said vacancy. So long
the posts can be filled under paragraph 4 of
the Order by promotion, it is not to the

1 (1994)3 UPLBEC
Management to take resort to the power to
appoint ad hoc teacher by direct recruitment
under paragraph 5 of the First Removal of
Difficulties Order. In Charu Chandra Tiwari
v. District Inspector of Schools, 1990
UPLBEC Page 160, it was held that the
Management has to fill the vacancy by ad hoc
promotion of a senior most teacher of the
same
institution
qualified
for
such
appointment and ad hoc appointment through
direct recruitment is permissible only in case
no such teacher in the institution is available.
This according to me lays down the correct
view of law. I am, therefore, of the view that
the existing substantive vacancy which has
been notified to the Commission and the
condition provided under Section 18 of the
Act is present, the vacancy has to be filled up
firstly by promotion from amongst senior
most teacher in next lower grade."

10. The full Bench was itself relying on an
earlier decision of the Court Chandra Tiwari
v. District Inspector of Schools. What is
relevant is on what the Full Bench has noticed
towards the end of the paragraph. The Full
bench has laid down that a vacancy, in the
circumstances as the present one, has to be
filled up first by promotion from amongst the
senior most teachers in the next lower grade.
The emphasis is on an exercise of filling a
vacancy initially from amongst the candidate
available at the institution itself by promotion.
The Full Bench adopts the reasoning (in the
case referred to) that an ad hoc appointment
by direct recruitment is permissible only if an
eligible teacher at the institution is not
available. In that case, recourse can be
resorted to by making an appointment through
direct recruitment. Suffice it to say either way
the appointments, as may be made, given the
exigencies of the situation, would have the
status of being ad hoc. Consequently, there is
no rigidity that a vacancy, in context, will be
filled
with
promotion
of
an
in-house
candidate. This position has been clarified by
the Full Bench by laying down that first the
Committee of Management will assess on the
1ALL] Pramod Kumar Rai & others V. Life Insurance Co. of India & others

89
eligible candidates being available within
the institution so as to maintain standards of
teaching, thus, the reference to eligible
candidates.
If
eligible
candidates
are
available, then, an appointment will be made
on an ad hoc capacity from within the
institution until a duly selected candidate is
returned from the Commission.

11. But if there be no eligible candidate
within the institution and this will need to be
placed on record, then, nothing stands in the
way of the Committee of Management to take
recourse to make a direct recruitment as an
alternate, on an ad hoc basis.

To that extent there is an error in the
judgement of the learned Judge.

12. In the present case, it would be
appropriate that the record be remitted to the
Committee of Management for its decision to
come to a conclusion whether an eligible
candidate within the institution was available
or not available, at the relevant time. If the
Committee of Management comes to the
conclusion
that
there
were no eligible
candidates available for promotion within the
institution, then, the appointment so made
shall be retained.

13. This Court is not going into the rival
merits of the candidates, whether they should
be in-house or by direct recruitment as this
matter has yet to be examined by the
Committee of Management.

The appeal is allowed. The order of the
learned Judge, dated 18 September 1995 on
the writ petition is set aside.

No order on costs.

Appeal Allowed.

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