State of Orissa & ANR Vs. N.N.
Swamy & Ors  INSC 33 (27 January 1977)
CITATION: 1977 AIR 1237 1977 SCR (2) 774 1977
SCC (2) 508
Constitution of India, Article 16--Private
college taken over by State Government-Absorption of staff--Consideration of
eligibility for appointment Readers--Differentiation between similarly situated
Readers on ground of drawing salary of Rs.600/or more on date of takeover,
whether amounts to denial equal opportunity for employment under Art. 16.
The respondents were working as Readers in
Khallikote College, a private institution which was taken over by the Orissa
Government on March 9, 1971. A Government circular containing conditions
governing taking over the services of the teaching staff of Khallikote College,
was issued on March 23, 1971, whereby the respondents were appointed as
lecturers in class II temporarily on ad hoc basis for a period of six months.
At the end of this period, the names of those Readers who were drawing a salary
of Rs.600/or more per month on the date of take-over, were recommended to the
Public Service Commission for the determination of' their suitability for appointment
as Readers. The respondents and others who were drawing less than Rs.600/were
not considered eligible for such recommendation. Their writ petition against
the denial of equal opportunity under Art.
16 was accepted by the High Court.
Dismissing the appeals by special leave the
HELD:--The condition of drawing of Rs.600/or
more on the date of taking over, which has been laid down in the circular as a
particular qualification for eligibility for appointment as Reader and later
for consideration of their suitability by the Public Service Commission for appointment
as Reader, is arbitrary and discriminatory. It has no nexus with the object
underlying the qualification test in an educational institution having regard
to the most essential condition of intrinsic quality and efficiency of the
teachers, and results in denial of equal opportunity to the respondents in the
matter of employment under the Government under Art. 16 of the Constitution.
[719 C-D, F-G] The General Manager Southern Railway v. Rangachari  2 SCR
Smt. Juthika Bhattacharya v. The State of
Madhya Pradesh and Others  SCC 96, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1357-58 of 1975.
(Appeals by special leave from the judgment
and order dated 4-2-1974 of the Orissa High Court in O.J.C. No. 410/1971).
M.K. Ramamurthi and B. Parthasarathi, for the
Gobind Das, N.V. Rama Das and G. Narayana
Rao, for respondents 1-8 in CA 1357/75.
The Judgment of the Court was delivered by
GOSWAMI, J--These appeals by special leave are directed against the judgment of
the Orissa High Court of February 4, 1974.
There was a private college known by the name
of Khallikote College. This is an institution which grew out of a school
established 775 in 1856. The management had to meet with financial crisis in
the past and obtained financial help in the shape of liberal endowment under a
trust deed from the then zamindar of Khallikote. The institution, it is stated,
became one of the premier colleges in the town of Behrampur, Ganjam District,
Orissa. The College was at first affiliated to the Andhra University at Waltair
and thereafter to the Utkal University, and since 1967 it has been affiliated
to the Behrampur University.
The Government of Orissa took over the
management of the College on and from March 9, 1971, and a formal agreement was
executed between the managing committee of the College and the Governor of the
State. The College was taken over by the Government in pursuance of the
unanimous resolution of the managing committee of February 18, 1970, and the
transfer to the Government was of all the assets of the College but without any
liability. The managing committee continued to be liable for the outstanding
liabilities, if any, of the College for which Government was not liable. The
College after the takeover was administered as a Government College.
The eight writ petitioners in the High Court
(Respondents herein) were working as Readers in different faculties in the said
College on the date of the aforesaid transfer in the scale of pay Rs.510--860/whereas
the Government scale for Readers was Rs.600-1000/-. On the date of take over,
namely, March 9, 1971, each of the respondents was drawing a salary somewhere
less than Rs.600/-; three of them less by only Rs.30/-.
The material particulars of the ten Readers
of the College who were all earlier in private employment, including the eight
Respondents, are as follows (Annexure I, Volume 1I of the Paper Book):
Sl. Name Date of Date of Date of Confirmed
Pay as on No. Birth 1st promoas 9-3-1971 appointtion (date of ment take over)
1.Sri N.N.Swamy 8-3-34 21-7-58 1-12-68 Reader Rs.570 2.Sri N.Satapathy 6-9-33
July'59 27-1-70 Reader Rs.540 3.Sri P.Haridas 10-3-36 25-10-61 25-10-69
4. Sri J.J. Rao 16-3-36 7-7-59 1-7-68 Reader
5. Sri K.C. Samantra 5-7-70 Lecturer All the
posts are permanent
6. Sri G.J. Chineswar Rao 30-9-31 3-9-57
1-10-67 Reader Rs.570
7. Sri Ch. Chandra Sekhar Patro . . 1-7-35
1-8-58 1-1-57 Reader Rs.570
8. Sri Narayana Behera 1-10-37 2-8-62 13-9-70
9. Sri T.K.Satyanmurty 14-9-27 1-7-49 4-5-59
Reader Rs.660 10.Sri V.S.R.
Gupta 28-12-30 1-7-52 4-9-69 Lecturer Rs.600
776 It will appear that five Respondents out of eight were confirmed as Readers
prior to the takeover. Three Respondents were confirmed as Lecturers but were
promoted as Readers prior to the transfer of the College. The last two Readers
in the list who. were lucky to draw salary of the amount of Rs.660/and Rs.600/respectively
as on the date of takeover, were treated differently by the Government from the
eight Respondents on the sole ground that they were drawing as Reader salary of
more than Rs.600/-. It is rather poignant that the tenth Reader in the list was
only a confirmed Lecturer whereas, as already shown, five of the Respondents
were confirmed Readers although drawing salary less than Rs.600/On July 30,
1970, the Government prescribed qualifications for appointment as a Reader by a
Circular of that date addressed to the Director of Public Instructions (Higher
Education) Orissa, which appears to supersede the earlier circulars on the
subject. It was stated in that circular that the "Government have been
pleased to order that following principles shall hence forward be followed in
the appointment Readers, namely, (a) no officer who has not had at least 8
years of teaching experience as a Lecturer would be eligible for consideration;
and (b) the post of Reader shall originally be filled up by promotion subject
to the satisfactory performance and conduct of the officer as a lecturer".
On March 23, 1971, the Government issued a
circular containing conditions governing taking over the services of the
teaching staff of the College. Paras 4 and 5 of that circular, which are
material for our purpose, may be quoted:
"4. The State Government shall offer ad
hoc appointment to all staff inposition on the date of take over subject to
para 5, and sub-para (d) of this paragraph for a period not exceeding six
months in each case, treating all such staff as fresh entrants to Government
service. The final absorption of such staff in Government service shall be
subject to the following conditions:
x x x x x (b) That after termination of
services of surplus personnel, the cases of staff retained in Class I and Class
II shall be referred to the Orissa Public Service Commission for determination
of their suitability to hold posts in Class I or II as the case may be. The
services of those who are not found suitable by the P.S.C. (Public Service
Commission) shall also, be terminated by giving one month's notice in each'
case. Those found suitable by the Commission shall be finally absorbed in
respective Trade of the O.E.S.
(Orissa Education Service) for which they are
found 777 suitable. It is hereby clarified that at the time of reference to the
P.S.C. for determination of suitability for appointment as Readers, cases of
Lecturers of Government College, eligible for appointment as Readers shall also
be simultaneously referred to the P.S.C.
for consideration against those posts.
X X X X (c) While making reference to the
P.S.C ....... cases of those ad hoc Readers who would have been normally,
entitled to pay of less than Rs.600/per month on 9-3-71 by application of the
formula "minimum of the scale of pay of Readers in force in the Colleges
on the date of their appointment as such by the Ex-Managing Committee plus one.
increment in that scale for every completed year of service up to 9-3-71"
would be referred for determination of their suitability for absorption as
X X X X
5. Ad hoc appointment shall be issued to all
Professors and such of the Readers in position, who on the date of take-over
were in receipt of pay of Rs.600/per month or more, in the scale of pay
Rs.600--1000/against posts of Readers. Readers who on the date of take over
were in receipt of pay of less than Rs.600/per month and all lecturers in
position on that date shall be given ad hoc appointment against the post of
lecturers in the scale of Rs.260--780/with effect from the date of take
X X X X Basing on the aforesaid provisions of
the above circular the Director of Public Instructions sent on April 20, 1971,
to each of the Respondents appointment letters whereby they were appointed as
Lecturers in Class II temporarily on ad hoc basis for a period of six months
with effect from the forenoon of March 9, 1971, or till the appointment is made
in consultation with the Orissa Public Service' Commission, whichever is
earlier; subject to verification of character and antecedents and production of
medical fitness certificate. Appointments were, thus, offered to. the
Respondents under the terms and conditions of take over which have been already
The grievance of the Respondents is that
although they had all the requisite qualifications for the appointment as
Reader and they were all holding the posts of Reader before the take over and
five of them were even confirmed Readers but since under the aforesaid terms of
the take over they were drawing a salary of less than Rs.600/on the date of
take over. their names were not referred to the Public 778 Service Commission
for consideration of their' suitability for appointment as Readers in the
Government College. It is not disputed that they are otherwise educationally
and by experience qualified for the post of Reader. The High Court found that
the requirement of eight years of teaching experience, as mentioned above,
which is needed for appointment as a Reader is more than amply fulfilled by
each of the Respondents. The High Court accepted the Writ Petitions and held
that the Respondents were entitled to consideration by the Public Service
Commission for appointment as Readers' and hence these appeals by the State
which are confined only to the above question.
It is submitted by Mr. Ramamurthi on behalf
of the appellants that the High Court erred in directing the Government to take
into account, as experience, the service of the Respondents while they were in
the private college since, according to him, the necessary qualification is
eight years experience in Class II, Orissa Education Service (O.E.S.). This
submission is based on the Orissa Education Service Class I (Recruitment to the
College Branch) Rules, 1971, issued on July 19, 1971, produced for the first
time in this Court. It is submitted that since the Respondents have not
completed eight years of service in the O.E.S. Class II (Lecturer's grade) in
Government service, they are not entitled to be considered by the Public
Service Commission for appointment as Readers. We are unable to accept this
submission based on these Rules. These Rules of July 19, 1971, were not
produced in the High Court and the reason is obvious that these were not relied
upon by the State in connection with the appointment of the Respondents as
Readers after the College had been taken over by the Government on March 9,
1971. The argument has, therefore, to be supported on the intrinsic strength of
the circular of March 23, 1971.
Apart from this, there is a stronger reason
entertain this submission at this stage. Even
in the Special Leave Petition filed by the State on July 15, 1974, there was no
mention whatsoever about the aforesaid Rules and necessarily no ground was
taken in the Petition on the basis of these Rules. Being conscious of this
position Mr. Ramamurthi filed a Civil Miscellaneous Petition No..
4069 of 1976 before this Court on April 30,
1976, to urge this additional ground. After hearing Mr. Ramamurthi we rejected
this prayer for urging the additional ground by such a belated application when
the High Court had no opportunity to consider the question.
The only question, therefore, which requires
decision in these appeals is _whether the Respondents were denied equal
opportunity under Article 16 of the Constitution in the matter of appointment
as Readers under the Government in the manner laid down in the circular of
March 23, 1971.
The following facts are admitted:
The Respondents and two others, namely, T.K.
Satyanmurty (No. 9) and V.S.R.. Gupta (No. 10) in the list (Annexure I) were
all Readers in the private College, each. having put in more than eight 779
years of service there as a Lecturer. T. K. Satyanmurty was promoted as Reader
on 4-5-1969 and was drawing Rs.660/on the date of taking over. V.S.R. Gupta was
promoted as Reader on 4-9-1969 and was drawing Rs.600/-, the minimum according
to the aforesaid Government circular, on the date of taking over. He was not
even confirmed as a Reader but was only confirmed as a Lecturer. Amongst the
Respondents, N.N. Swamy (No. 1), N. Satapathy (No. 2), J.J. Rao (No. 4), G.J.
Chineswar Rao (No. o) and Ch. Chandra Sekhar Patro (No. 7) m the list (Annexure
1) were confirmed as Readers and four of them were promoted even earlier than
9 and No. 10. It is thus clear that the
condition of drawing of Rs.600/or more on the date of taking over, which has
been laid down in the said circular as a particular qualification for
eligibility for appointment as Reader and later for consideration of their
suitability by the Public Service Commission for appointment as Reader, is
arbitrary and discriminatory. This condition has no nexus, whatever, with the
object underlying the qualification test in an educational institution having
regard to the most essential condition of intrinsic quality and efficiency of
the teachers. It is not unknown that private institutions generally have great
handicaps in the matter of finance and oftener the teaching staff in a private
college has not the same scales of pay and sometimes even has much lower scales
than that of the Government colleges. It is one thing to lay down appropriate
educational and intelligibly relevant qualifications for certain posts in a
college and also teaching experience of a specified duration but complete
ignoration, without valid reason, of the teaching experience of a lecturer in a
private college, otherwise qualified, on the sole ground of drawing a
particular amount of salary on a particular date cannot be countenanced. T.K. Satyanmurty
(No. 9) was promoted as a Reader while in the private college much later than
the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to;
draw Rs.660/on the date of takeover, while
the Respondents were drawing a little lower pay. The former was preferred and
given the ad hoc appointment of a Reader and was held as eligible for
consideration by the Public Service Commission for appointment as Reader and
the claims of the Respondents were ignored. Thus even amongst the Readers in
the private college, similarly situated, the only ground for ignoring the
claims of the said Respondents was drawing of a lesser pay; even though it may
be less by Rs.30/-, on March 9, 1971. This ground for a most unreasonable
differentiation in picking and choosing from amongst the employees similarly
situated on an absolutely artificial and irrelevant consideration results in
denial of equal opportunity to the Respondents in the matter of employment
under the Government under Article 16 of the Constitution.
It is well-settled that under Article 16(1)
of the Constitution matters relating to employment not only mean the initial
appointment but also include all matters relating to employment, whether prior
or subsequent to the employment and also include promotion, (See The General
Manager, Southern Railway v. Rangachari(1).
(1)  2 SCR 586 2--206SCI/77 780 our
attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya
v. The State of Madhya Pradesh and Others(1) on behalf of the appellants,
wherefrom it was pointed out that Government could validly impose comparatively
stringent qualifications for posts in schools taken over from private
management, since persons there may be appointed without the requisite
experience as needed in Government schools. That case is entirely different
from the present case. There may be no difficulty in accepting the position
that Government can screen the teachers at the time of fresh appointment in
Government service after taking over any institution from private management.
The educational qualifications and teaching experience which may be insisted
upon may be appropriately stringent having regard to the quality of education
which Government intends to.
impart in the college after taking over the
same from the private management. If the quondam private employees in the
College did not fulfill the qualifications, experience and other requisite
conditions, they may not be eligible for appointment since Government may not
undertake to take over all the employees by maintaining the billabong of a
status quo ante. Such a position, if taken by the Government, is consistent
with implementation of a correct educational policy and will not incur the
frown of Article 16 of the Constitution. The question is entirely different
when, as in the present case, the Respondents answering the test of educational
qualifications, as well as, experience of teaching in a recognised private
college are discriminated amongst the very category of Readers on an irrational
and illusory consideration. Denial of an opportunity to these Respondents even
for being considered for the post of Reader is clearly violative of Article 16
of the Constitution.
When a fairly well-recognised institution, as
in this case, run for more than a century, is completely taken over by the
Government for management, it is not merely taking over the land and buildings,
tables and chairs. It has to tackle, at the same time, a human problem, that is
to say, the fate of the teachers and the staff serving that institution. The
institution, with which we are concerned, was taken over, by consent, as a
going educational concern and it goes without saying that it must be
administered on sound lines having regard 'to quality, efficiency and progress
in all respects. It is understandable that the employees had to join the new
service under the Government, for the first time, and so could be, in that
sense, fresh entrants. But to say that the teaching experience of the Readers
in the private institution is completely effaced to the extent that they will
not be even eligible, on the plea of absence of teaching experience in
Government service, for consideration for appointment as Readers is a seriously
grim issue. We feel assured that such an argument had not been canvassed by the
State in the High Court on the basis of the Rules of July 19, 1971, since these
Rules came into force after the takeover for which a separate circular had already
been issued to take care of the special exigency.
Action under the Government circular of March
23, 1971, alone, was in controversy in the High Court. The said circular took
recognition of the service in the private college in the case of two (1) 
4 SCC 96.
781 Readers (Nos. 9 and 10 in Annexure 1).
The only differentia was, therefore, the salary drawn by the Readers on the
date of take over. That action based on the salary aspect under the said
circular had to. stand the test of Article 16 in the High Court, as well as,
before us. the argument in favour of complete rasion of the past teaching experience
in the private college, first time presented before us, fails to take note of
the distinction between eligibility and suitability. Eight years' teaching
experience in a college and the fulfillment of other' requisite qualifications
make a person eligible for appointment .as a Reader, but whether he is suitable
for selection for the post is an entirely different matter.
We are, therefore, clearly of opinion that
all the Respondents are eligible to be referred to. the Public Service
Commission for the post of Reader. Their names shall be referred to the
Commission, accordingly. Whether they will be suitable for appointment us
Readers will be a matter entirely for due and proper consideration of the Public
Service Commission whose recommendations will be considered by the Government
in the matter of final absorption. The High Court was right in allowing the
.above claim in the writ applications. The appeals fail and are dismissed with
M.R. Appeals dismissed.