JUDGMENT 1. 1. This appeal has been preferred against the order dated 4th August, 2004 whereby the writ petition of the appellant has been dismissed by the learned Single Judge upholding the order dated 27.10.2001 of Rajasthan Non-Educational Institutions Tribunal (hereafter referred to as "the learned Tribunal"). 2. The respondent No. 4 was appointed by the appellant as Ayurvedic Teacher on 01.08.1987 on a remuneration of Rs. 650/- per month for teaching ayurvedic subjects. Since there was dropout of the students from the ayurvedic subject, the management of the appellant wanted to convert the post of Ayurvedic Teacher into Science Teacher. For that purpose, a meeting headed by the Chairman and ten other members was convened and held on 24.04.1995 wherein it was decided that because of dropout of the students from the ayurvedic class, the post of Ayurvedic Teacher would be utilised as Science Teacher. Accordingly, an advertisement was issued on 23rd July, 1996 for filling up of this post of Science Teacher. According to the respondent, he was thereafter not permitted to mark his attendance. Under, these circumstances, the respondent No. 4 (hereinafter referred to as 'the respondent') filed an application under Section 21 of the Rajasthan Non- Government Educational Institution Act, 1989 before the learned Tribunal, seeking relief to pay the difference amount of salary as per pay scale of Ayurvedic Teacher (Grade-I), increments and other allowances from 1995 and also be permitted to mark his attendance in the School Attendance Register. 3. After hearing the learned counsel for the parties, the learned Tribunal vide order dated 27.10.2001 directed that the respondent is entitled to be treated equal to that of a Government Teacher and shall be continued as teacher. It was also directed that post of teacher be utilised as Ayurvedic Teacher. Aggrieved of the order of learned Tribunal, the appellant challenged it by means of writ petition No. 5163/04. The learned Single Judge after hearing the learned counsel for the parties dismissed the writ petition observing that the learned Tribunal has not committed any error or illegality in passing the impugned order. 4. Aggrieved of the order of learned Tribunal, the appellant challenged it by means of writ petition No. 5163/04. The learned Single Judge after hearing the learned counsel for the parties dismissed the writ petition observing that the learned Tribunal has not committed any error or illegality in passing the impugned order. 4. The appellant being dissatisfied with the order of the learned Single Judge has challenged the correctness of the advertisement under appeal, by means of this special appeal, on the ground that the post of Ayurvedic Teacher has been utilised as Science Teacher and there is no work for the respondent with the appellant and though these averments were projected before the learned Tribunal as well as learned Single Judge, yet the same have not been properly appreciated and the application of the respondent No. 4 has been erroneously allowed by the Tribunal and maintained by the learned Single Judge.We have heard learned counsel for the parties and perused the record. 5. Learned counsel for the appellant has submitted that the post of Ayurvedic Teacher has been abolished being converted to utilise it as Science Teacher. In support of his argument he wanted the Court to examine the Record. It is also submitted that the appointment of respondent No. 4 is void ab initio as the same was made by the President without the recommendation and consultation with the Management of the Institution as required in terms of the by-laws. 6. It is an admitted case of the parties that the respondent No. 4 was appointed by the President without the recommendation of the Management or as per the by-laws of the Institution. This issue has been considered by the learned Tribunal and relying upon the judgment delivered in case title Dr. Shiv Prakash Garhwal v. State of Rajasthan & Ors. decided on 19.07.2000, recorded the findings that the post has been filled up by the President, without following requisite procedure, therefore, the appointment was bad. The learned Tribunal further observed that since no action has been taken by the management for removal of the respondent, therefore, the respondent shall be continued. 7. On perusal of the record we find that initially the post of Ayurvedic Teacher was created and the respondent was appointed against the post on 01.08.1987. The learned Tribunal further observed that since no action has been taken by the management for removal of the respondent, therefore, the respondent shall be continued. 7. On perusal of the record we find that initially the post of Ayurvedic Teacher was created and the respondent was appointed against the post on 01.08.1987. By virtue of resolution dated 24.04.1995, the post of Ayurvedic Teacher has been converted to be utilised as a Science Teacher. We also find from the record that it was also resolved in the meeting of the Management that since the services of respondent are not required, therefore, he be given six months' salary in lieu of the pay, in terms of rule 39 of the Rules of Rajasthan' Non-Government Educational Institution Rules, 1993. At this stage, the respondent approached the learned Tribunal with a concocted story that the Management is not permitting him to mark his presence in the Attendance Register. For conversion of the post, the appellant wrote a letter to the Director, Education Department, seeking permission to convert the post. Since no response was received, another letter was written on 03.10.1996. The Director replied vide his letter dated 15.03.1997 that since the post has been created by the Management Committee and no aid being provided by the Government, therefore, sanction of the Government is neither necessary nor required and the abolition orconversion of the post may be considered by the management committee itself. The Management Committee by that time had already approved the conversion of the post. 8. On appreciation of the claim of the respondent-workman, we find that these facts have not been appreciated by the learned Tribunal and the learned Single Judge. The learned Tribunal proceeded on the assumption that the post has not been converted and has not properly appreciated the stand of the appellant which they have categorically and specially taken stating that the respondent could not be considered for appointment against the converted post as he was not possessed of the eligibility qualification for the post of Science Teacher. The Tribunal issued the direction unmindful of the fact that the post of Ayurvedic Teacher is not existing. 9. We find that the post of Science Teacher after the conversion, was advertised on 23rd July, 1996 and the candidate selected on 18.09.1996. The Tribunal issued the direction unmindful of the fact that the post of Ayurvedic Teacher is not existing. 9. We find that the post of Science Teacher after the conversion, was advertised on 23rd July, 1996 and the candidate selected on 18.09.1996. The learned Tribunal was not having jurisdiction to direct the appellant to continue the respondent while there was no post against which the respondent could be continued. This direction was beyond the jurisdiction of the learned Tribunal and the same is set aside. 10. So far as the application of respondent under Section 21 of the Act of 1989 is concerned, we find from the record that the respondent has not attended the institution since 01.09.1985 though this has been disputed by the learned counsel for the respondent. The learned counsel for the appellant has drawn our attention on a letter which shows that the respondent was directed to mark the attendance in the attendance register but the respondent refused to mark his attendance. Therefore, it cannot be said that the respondent was attending the institution or was prevented to mark his attendance. Be that as it may, the post was advertised on 23.07.1996 and the same has been filled up on 18.09.1996. Under these circumstances, we find that the post stood abolished by conversion by virtue of resolution dated 24.04.1995 and no direction can be issued for continuation of the respondent unless there is post. This proposition of law has been settled by the Apex Court in case title Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers ASSN. & Ors., (2006) 4 SCC 132 , where the dispute was similar and dealing with it. The Court held as under : "It is well settled that the power to abolish a post which may result in the holder thereof ceasing to be a Government Servant has got to be recognized. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, a Department which was abolished or abandoned wholly or partially for want of funds, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. In such an event, a Department which was abolished or abandoned wholly or partially for want of funds, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. In the instant case, the State of Rajasthan has framed a scheme and offered alternative employment in the other local bodies as a Welfare State on humanitarian grounds. As already noticed, the employees of the AVS have accepted alternative employment on terms and conditions of the local bodies and having filed a solemn statement by way of affidavit that they will not claim continuity of service by protection of seniority etc. nor will they challenge the terms of such employment and shall also withdraw the writ petition filed by them. They cannot now go around and say that the judgment of the Division Bench should be given effect to. In our view, they are estopped from claiming the benefits and challenging the terms and conditions of the fresh employment. The employees have no right to resile from the affidavits filed before the High Court. We have searched in vain in order to see as to whether there is any material to show that the settlement was intended to frustrate the order passed by the High Court. At no point of time, the employees raised any dispute as regards the fairness of the settlement. Having obtained the benefit, it was not open to them to turn down without justifiable reasons to contend that the settlement was not fair and they should be given pay protection, counting of service for retiral benefits and placing the employees on par in the receiving Department. The cabinet decision of not granting pay protection was taken after taking into consideration the views of the Finance Department as it has huge financial burden on the local bodies offering re-employment after relaxing their own recruitment rules. In our view, the aforesaid categorical condition that the employees would not be entitled to pay protection and in the absence of any legal right of pay protection and fresh employment consequent upon on fresh appointment on humanitarian grounds, the decision of the High Court to grant protection of pay is unsustainable and liable to be interfered with. 11. In our view, the aforesaid categorical condition that the employees would not be entitled to pay protection and in the absence of any legal right of pay protection and fresh employment consequent upon on fresh appointment on humanitarian grounds, the decision of the High Court to grant protection of pay is unsustainable and liable to be interfered with. 11. For these reasons, we are of the considered view that the award of the learned Tribunal and the judgment of the learned Single Judge do not stand the test of law and are required to be set aside. Consequently, the appeal is allowed and the judgment under appeal and the award are set aside.Appeal Allowed. *******