S. H. SHETH, J. ( 1 ) THE petitioner holds B. Sc. Degree in Geology and a Diploma in Mining Engineering from the Central Board of Technical Education Mysore. On 27th February 1956 he joined the service of the Central Government and was attached to Indian Bureau of Mines at Calcutta. There he held the substantive post of a Junior Technical Assistant before be was appointed as a Driller. Thereafter the Government of Gujarat offered him a post of a Mining Officer and appointed him to that post on 2nd April 1962. He thereafter passed the Public Service Commission test and was regularly appointed to the post. He successfully completed two years period of probation and it was ordered that he had done so with effect from 19th July 1962. He also completed two years period of probation as a Senior Mining Officer. Later on the post of a Senior Mining Officer which he held was converted into the post of a Deputy Director of Geology and Mining with effect from 29th November 1966 His lien on the Central Government post therefore automatically came to a termination. On 13th April 1976 the post of a Deputy Director of Geology and Mines was abolished and the petitioner was discharged from service. ( 2 ) IT is that order which is challenged in this petition. ( 3 ) THE first question which has arisen for my consideration is whether a permanent employee can be discharged from service before he attains the age of superannuation. Mr. Takwani has pointed out to me that it is the prerogative of the Executive to abolish a post. In Ramanatha v. State of Kerala A. I. R. 1973 S. C. 2641 the question of creating continuing and abolishing the posts in the context of Arts. 309 310 and 311 of the Constitution arose. It is laid down that the power to create continue and abolish any civil post is inherent in every sovereign Government and that it is a policy decision exercised by the executive and is dependent on exigencies of circumstances and administrative necessity. It has been also observed by the Supreme Court in that decision that as a result of the abolition of a post the service of its incumbent may be terminated and that such termination is neither dismissal nor removal within the meaning of Art. 311. It has been also observed by the Supreme Court in that decision that as a result of the abolition of a post the service of its incumbent may be terminated and that such termination is neither dismissal nor removal within the meaning of Art. 311. It has next been held that the abolition of a post is not a personal penalty against the Government servant and that therefore the opportunity of showing cause against the proposed penalty of dismissal or removal does not arise in the case of abolition of a post. The next observation made by the Supreme Court shows that no right is conferred on the person to hold the post after it is abolished or to any other employment. ( 4 ) IN State of Haryana v. Shri Das Raj Sangar A. I. R. 1976 S. C. 1199 a similar question arose in the context of Art 311 It has been held by the Supreme Court in that decision that whether a post should be retained or abolished is essentially a matter for the Government to decide and that such a decision if taken in good faith cannot be set aside by the Court. The only qualification which the Supreme Court has attached is that the decision to abolish a post should be taken in good faith and should not be used as a cloak or pretence to terminate the services of a person holding that post. Therefore according to the Supreme Court if on consideration of the facts of a case the abolition of the post is found to be a device for terminating the services of an employee such abolition would suffer from a serious infirmity and would be liable to be set aside. It is indisputable that the post of a Deputy Director of Geology and Mining which the petitioner held was a permanent post and that in that post the petitioner was confirmed. He was therefore a permanent employee of the State of Gujarat holding the permanent post of a Deputy Director of Geology and Mining. ( 5 ) MR. Takwani has invited my attention to Rule 266 of the Bombay Civil Services Rules Vol. 1 which is one of the rules dealing with Compensation Pensions. He was therefore a permanent employee of the State of Gujarat holding the permanent post of a Deputy Director of Geology and Mining. ( 5 ) MR. Takwani has invited my attention to Rule 266 of the Bombay Civil Services Rules Vol. 1 which is one of the rules dealing with Compensation Pensions. It provides as follows:266 If a Government servant is selected for discharge owing to the abolition of his permanent post or owing to a change in the nature of the duties of that post he shall unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own have the option (A) of taking any compensation pension or gratuity to which he may be entitled for the service he has already rendered or (b) of accepting another appointment or transfer to another establishment even on a lower pay if offered and continuing to count his previous service for pension. THIS rule gives the concerned employee an option which he may exercise if he is not appointed to another post described in Rule 266. Mr. Takwani has pointed out to me that the impugned order states that the petitioner shall be entitled to such benefits as are available to him under Rule 266. This Rule indeed provides for a contingency arising out of the abolition of a permanent post. In such a case unless the concerned employee is appointed to another post he has an option of taking compensation pension or gratuity or of accepting another appointment or transfer to another post in another establishment if offered. It has been argued on behalf of the petitioner that the petitioner initially joined the service of the State Government as a Mining Officer a post lower than the post of a Deputy Director of Geology and Mining. Therefore if the post of a Deputy Director of Geology and Mining was abolished then the petitioner who held that post ought to have been offered the next lower post of a Mining Officer which he held before he held the abolished post. Mr. Takwani on the other hand has argued that clause (b) of Rule 266 uses the expression if offered and that therefore it was not obligatory upon the State Government to offer another appointment to the petitioner. Mr. Takwani on the other hand has argued that clause (b) of Rule 266 uses the expression if offered and that therefore it was not obligatory upon the State Government to offer another appointment to the petitioner. According to him the expression if offered confers upon the State Government unfettered and uncontrolled discretion to offer or not to offer another appointment. I am unable to uphold this argument which has been advanced on behalf of the State Government It is quite conceivable that in a certain case there may not be a post which can be offered. In such a case the question of offering an alter. native post does not arise. But if there is a post which can be offered then it is not open to the State Government under Rule 266 to say that they may or may not offer it and that they care force a permanent employee out of job upon the abolition of a permanent post which he held. In my opinion the expression if offered means that if there is an offerable post it must be offered. I say so because every power conferred upon a public authority must be exercised reasonably. To leave it to the whim and caprice of the State Government to offer or not to offer a post even if there is an offerable post is to make the mockery of the rule and to deprive it of its substance and content. ( 6 ) THE question which therefore arises is whether there was an offerable post which could have been offered to the petitioner who could have thereby been saved from being discharged. In fact the petitioner held the post of a Mining Officer before he came to be appointed as a Deputy Director of Geology and Mining. Upon the abolition of the latter-menti- oned post he could have certainly held the post of a Mining Officer. The very fact that he was promoted to the post of a Deputy Director of Geology and Mining from the lower post of a Mining Officer means that he bad held the lower post successfully and efficiently. It is not in dispute before me that the reorganization of the department which the Government has done has not led to the abolition of the posts of Mining Officers and that they still exist. It is not in dispute before me that the reorganization of the department which the Government has done has not led to the abolition of the posts of Mining Officers and that they still exist. When the State Government therefore ordered the abolition of the post of a Deputy Director of Geology and Mining it was their duty under Rule 266 to offer to the petitioner the lower post of a Mining Officer or compensation pension or gratuity and ask him to choose between the two They did not do so. In service jurisprudence it is a well established principle that in case of retrenchment one who has joined last goes first. The petitioner therefore could have been appointed to the post of a Mining Officer after discharging the junior most Mining Officer from service. ( 7 ) NOW it is difficult to conceive that a permanent employee holding a lower post in the same department should continue in service and a superior employee holding a higher post should be discharged. If the argument which Mr. Takwani has advanced is to be accepted it would mean that in case the State Government abolishes the post of the Chief Secretary the person holding that post goes out of service while others junior to him and holding the posts of Secretaries would continue to be in service. The acceptance of the argument which Mr. Takwani has advanced before me will introduce an element of arbitrariness in public service and will subject it to risk and jeopardy not warranted by the rules and deprive it of the constitutional protection. In my opinion therefore it was not open to the State Government to discharge the petitioner from service as a consequence of the abolition of the post of a Deputy Director of Geology and Mining. ( 8 ) THE next contention which has been raised by Mr. Patel relates to legal mala fides. The first fact which he has tried to make out is that by Resolution dated 13th April 1976 though two posts of Deputy Directors along with certain other posts were abolished the Mineral Administration wing of the Directorate remained more or less unchanged. That is what has been stated in the Government Resolution. Patel relates to legal mala fides. The first fact which he has tried to make out is that by Resolution dated 13th April 1976 though two posts of Deputy Directors along with certain other posts were abolished the Mineral Administration wing of the Directorate remained more or less unchanged. That is what has been stated in the Government Resolution. According to him therefore though the administration of Directorate of Mines remained more or less unchanged not only the abolition of the post of a Deputy Director was not warranted but was resorted to with the oblique motive of discharging the petitioner from service. He has also pressed into service the fact that prior to the abolition of the post of a Deputy Director of Geology and Mining no mining operations were carried out by the Government Department and that after the abolition of the post also they are not carried out. Therefore according to him it is inconceivable that while Deputy Directors were necessary earlier they are not necessary now. He has therefore argued that in absence of any cause justifying the abolition of the post of a Deputy Director the abolition of the post was ordered with the object of sending the petitioner out of service and discharging him. The third fact which he has pressed into service is that in 1974 a charge-sheet was preferred against the petitioner for a departmental enquiry. In 1975 another charge-sheet was preferred against him for a similar purpose. Those enquiries have been pending. According to him the petitioner could not have been removed from service until the enquiry was concluded and unless it was found that the petitioner was guilty of a charge which would warrant his removal from service. According to him therefore the abolition of the post of a Deputy Director was the device to which the Government has resorted for removing the petitioner from service. These are the facts which he has marshalled with the object of convincing me that the uppermost object in the mind of the Government while abolishing the post of a Deputy Director was to discharge the petitioner from service and not so much to abolish the post itself. So far as factual aspects apart from the inferences drawn by Mr. Patel are concerned there is no controversy about them before me. So far as factual aspects apart from the inferences drawn by Mr. Patel are concerned there is no controversy about them before me. To this aspect of legal mala fides gravamen is added by the fact that while making the impugned order against the petitioner the Government did not offer him the post of a Mining Officer (which the petitioner had earlier successfully held) as contemplated by Rule 266 of the Bombay Civil Services Rules Vol. 1. According to him therefore when all these facts are considered in their proper context the inference that the impugned order was. made for the purpose of discharging the petitioner from service somehow or other becomes inescapable. The contention which Mr. Patel has raised appears to me to be well-founded. The first three facts which have been stated do not have in my opinion any special significance unless they are read in the context of the fact that the petitioner was not offered an alternative appointment within the meaning of Rule 266 (b) of the Bombay Civil Services Rules. However when they are examined in proper sequence and context the inference which he wants me to draw appears to be quite reasonable and plausible. ( 9 ) IN this context Arts. 14 and 16 of the Constitution also come into play. If the lower post of a Mining Officer can be offered to the petitioner and if it is not offered to him even though he is competent to hold it and if he is discharged from service while retaining in service persons junior to him as Mining Officers the equality of opportunity guaranteed under Art. 16 is violated and undue or hostile discrimination is exercised against the petitioner in violation of Art. 14. [ The rest of the judgment is not material for reports. ] .