JUDGMENT 1. - This petition has been filed challenging the order of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur dated 18.10.1994. The controversy in the present matter was that the respondent Mahendra Kumar Rana was appointed as Class IV employee vide order dated 6.7.1992 on ad hoc basis. The services of the petitioner were temporary in nature which were extended from time to time and the last extension was till 30.6.1994. The Managing Committee of the school took a decision in its Board meeting on 21.5.1994 to abolish the temporary ad hoc posts on which the respondent was working and accordingly informed the respondent vide order dated 31.5.1994 that his services shall stand terminated w.e.f. 30.6.1994 and one month's pay was also sent along with notice. The respondent preferred an appeal under section 19 of the Rajasthan Non-Government Educational Institutions Act, 1989 before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur. The Tribunal considered the matter and came to the conclusion that the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 have not been followed and as such the order of termination is contrary to the Act and the Rules as no opportunity was given of hearing nor prior permission from the Director of Education was taken and the notice of six months which was required to be given under the rule has also not been give. The contention of the management for abolition of the post was also considered and it was found that no evidence was produced with regard to abolition of the post. One of the contentions that grant in aid is not available on such post was considered of no avail since at the time when the appointment was give, the grant-in-aid in respect of payment of salary on such post was not available. 2. Mr. Pareek appearing on behalf of the respondent has drawn my attention towards the decision given in the case of the petitioner Maheshwari Senior Hr. Secondary School and another v. Bhika Ram Sharma, S.B. Civil writ Petition No.257/95 decided on 3.5.1995 where the contention of the petitioner that the removal of the service of temporary employee is not governed by the provisions of Rule 39 and Section 18 of the Act was negatived. Secondary School and another v. Bhika Ram Sharma, S.B. Civil writ Petition No.257/95 decided on 3.5.1995 where the contention of the petitioner that the removal of the service of temporary employee is not governed by the provisions of Rule 39 and Section 18 of the Act was negatived. It was left open to the management to dispense with the services of the petitioner after complying with the provisions of Section 18. It has also been pointed out that the special appeal against the said order has also been dismissed on 29.8.1995. 3. Mr. Sharma appearing on behalf of the petitioner has relied the decision of Apex Court in the case of P.L. Dhingra v. UCI, AIR 1958 SC 36 wherein it was observed by the Apex Court that the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied, or under the rules governing the conditions of service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima-facie punishment for it operates as a forfeiture of his right to hold that post on that rank and to get the emoluments and other benefits attached thereto. if the servant has no right for the post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his service does not deprive him of any right and cannot, therefore, by itself be a punishment. 4. The provisions of Section 18 of the Act of 1989 has contemplated the procedure for removal/dismissal or reduction in rank of employees. The Rajasthan Non-Government Educational Institution (Recognition, Grant-in-aid and other service conditions etc.) Rules, 1993 have made provision for removal or dismissal from service. Sub-rule (1) of Rule 39 provides that the service of an employee appointed temporarily for six months, may be terminated by the management at any time after giving at least one month's notice or one month's salary in lieu 150 Western Law Cases (Raj.) 1996 (1) thereof. Sub-rule (1) of Rule 39 provides that the service of an employee appointed temporarily for six months, may be terminated by the management at any time after giving at least one month's notice or one month's salary in lieu 150 Western Law Cases (Raj.) 1996 (1) thereof. Sub-rule (2) provides that an employee other than the employee referred to in sub-rule (1) may be removed or dismissed from service on the ground of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. A procedure has been provided therefor. From the perusal of sub-rule (1) it would be evident that the employee was for more than six months. The provisions of sub-rule (2) are also not applicable because that is applicable where the dismissal or removal is on the ground of in-subordination inefficiency, neglect of duty, misconduct or any other ground which makes-an employee unsuitable for further retention in service. Sub-rule (2) does not contemplate the situation where the post itself is abolished. The right of the employer to abolish the post is inherent with the right of creation of the post. The matter could have been challenged by the employee only on the ground that power of abolition of post is malafide and that burden was on him to prove by showing from the record that subsequently some other persons have been employed or any advertisement was issued or by such other conduct of the employer which is not the position over here. The Tribunal has proceeded entirely on the wrong basis that the material for abolition of the post was not produced before it. It is not the jurisdiction of the Tribunal to examine the validity of the decision of the Management Committee for abolition of the post unless as mentioned above the grievance is made that it is malafide exercise of power. The Tribunal has further erred in placing the burden on the employer for production of the document when it was not in dispute nor it was alleged by the employee that the power has been exercised malafidely for abolition of the post. The resolution which has been passed by the Management Committee by itself is a proof of fact that the employer does not want to continue the post. The resolution which has been passed by the Management Committee by itself is a proof of fact that the employer does not want to continue the post. The fact that the grant-in-aid was not available at the time when the temporary employment was given to the employee is not relevant for the purpose of abolition of post. The employer may for some time in the expectation continue with the post that grant-in-aid will be available to it, and subsequently it is found that grant-in-aid is not given by the government, it may take the-decision to abolish the post altogether. The circumstances which prevailed on the management to case to the conclusion for abolition of the post is not the subject matter of examination by the Tribunal. 5. The decision which has been relied by the learned counsel of another employee in S.B. Civil Writ Petition No.257/95 has also been proceeded on the assumption that the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rule of 1993 are applicable. The said provisions are not applicable to a post which has altogether been abolished. The right to hold the post comes to an end the moment the management takes the decision for abolition of the post. The Act or the Rules have not contemplated the procedure to be followed in such contingency and, therefore, I feel that the point as to whether the provisions of Section 18 and Rule 39 of the Rules of 1993 are applicable to an employee who was on temporary service and the art having been abolished requires reconsideration. It may also be observed that according to the petitioner the employee was given opportunity for regular selection in respect of the vacancy which has arisen on account of retirement of another employee for which the opportunity was given to other persons as well and the employee has not availed the said opportunity on the ground that the notice is said to have been received late and there was a stay order by the Tribunal in favour of such an employee. The question, therefore, still remains as to whether the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 are applicable to a temporary employee whose post has been abolished by the management. 6. The question, therefore, still remains as to whether the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 are applicable to a temporary employee whose post has been abolished by the management. 6. The matter may be placed before the Hon'ble Chief Justice for constituting the larger bench in view of the observations made by the Apex Court in the case of P.L. Dhingra (supra) to consider the following question "Whether the provisions of Section 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 and Rule 39 of the Rule of 1993 are applicable to a temporary employee whose services are terminated on account of abolition of post?" *******