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S.K. Khanna (Dr) Vs. State of Haryana [1993] INSC 481 (5 November 1993)

YOGESHWAR DAYAL (J) YOGESHWAR DAYAL (J) PUNCHHI, M.M. CITATION: 1994 SCC (1) 601 JT 1993 (6) 412 1993 SCALE (4)394

ACT:

HEADNOTE:

The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.- Leave granted in Special Leave Petition (Civil) No. 4702 of 1990.

2.This order will dispose of Civil Appeal Nos. 3947 of 1990; 4091 of 1991 and Civil Appeal arising out of SLP (C) No. 4702 of 1990.

3.It appears that Civil Suit No. 215 of 1981 was instituted by three persons, namely Bant Rai Gupta, O.P. Khosla and R.K. Jain, all Lecturers of Government National College, Sirsa against the State of Haryana through its Secretary, Education Department and Director, Higher Education, Haryana. The plaintiffs sought declaration that they were entitled to continue as Senior Lecturers and the order dated July 2, 1980 rejecting the representation of the plaintiffs and also the order dated October 24, 1980 reducing the plaintiffs in rank from Senior Lecturers to Lecturers were illegal, wrong, null and void and were liable to be set aside.

4.Before we deal with the averments on the basis of which the aforesaid declaration was sought, it may be useful to mention that the plaintiffs had submitted a representation to the Chief Minister of Haryana requesting the Government that their seniority should be fixed amongst the Senior Lecturers working in Government Colleges. They also requested that a new cadre be constituted for Lecturers and Senior Lecturers of the taken-over private colleges. On receipt of this representation, the Directorate of Education informed the Principal, Government National College, Sirsa that the plaintiffs had been appointed Lecturers as there was no provision in the University Grants Commission's grades for the appointment of Senior Lecturers, as such their demands were rejected vide letter dated July 2, 1980.

5.It is thus clear from the aforesaid that the order dated July 2, 1980 was the order whereby the Haryana Government declined to form a new cadre for Lecturers and Senior Lecturers for the taken-over colleges and also declined to treat the plaintiffs as Senior Lecturers.

604 6.Briefly stated, the facts of the case are that the plaintiffs were appointed as Lecturers in the National College, Sirsa, and thereafter were promoted as Senior Lecturers under the University Grants Commission Scheme.

The plaintiffs R.K. Jain and Bant Rai Gupta were appointed as Senior Lecturers in the National College, Sirsa, a private institution on January 11, 1973 and November 1, 1973 respectively.

7.It appears letter No. 765-Edu. 1(1) 76/3235 dated January 27, 1976 was sent by the Commissioner and Secretary to Government of Haryana, Education Department, to the Director of Public Instructions, Haryana, Chandigarh and copies thereof endorsed to the Principals of all Govemment/Non-Government Colleges in existence on January 1, 1975. It was communicated that there was only to be one grade for Lecturers whether of junior grade or senior grade.

The erstwhile Junior Lecturers' grade was 300-600 whereas Senior Lecturers' grade was 400-800. Both these grades as well as the grade of Lecturers (Selection Grade) were made into one grade of Lecturers and it was fixed at 700-40-1 1 00-EB-50-1300-Assessment-50-1600. In short the grade was 700-1600. In view of the aforesaid revision and uniformity in the pay scales in accordance with the recommendations of the University Grants Commission, the pay scales were revised with effect from January 1, 1973. The Governor of Haryana also issued an order dated September 21, 1976 to the effect that consequent upon the above changes, the question of promotion from one category (Lecturer) to another (Senior Lecturer) had been done away with retrospective effect i.e.

from January 1, 1973 and the Governor, Haryana, in consultation with the Haryana Public Service Commission, cancelled the promotion orders issued vide Haryana Government No. 2142-Edu.1(1-74/7781 dated March 14, 1974 and 5896Edu.1(1)-76/24346 dated August 7, 1974 being infructuous as per enclosed annexure. The cancellation of promotion was in relation to various Lecturers some in private colleges but mostly in Government colleges.

8.The erstwhile College where plaintiffs were serving was taken over on January 22, 1979 by the Government and was renamed as "Government National College, Sirsa".

9.It was the case of the plaintiffs that as the College was taken over by the Government, the services of the entire staff including the plaintiffs were placed at the disposal of the Government by the Management and as such the defendants issued the appointment letters dated January 22, 1979 wherein the status of the plaintiffs as regular Senior Lecturers was conceded and this fact was further corroborated when the services of the plaintiffs were regularised by the defendants vide letter dated March 14, 1980. It was pleaded that vide letter dated June 14, 1980 the Government substituted the words 'Lecturer' in place of 'Senior Lecturer' and also informed the plaintiffs that their representation for continuation of Senior Lecturers had been rejected by letter dated July 2, 1980. The letter dated October 24, 1980 reducing the rank of the plaintiffs from Senior Lecturers to Lecturers was challenged on the ground that there was a separate distinct living cadre of the Lecturers and of 605 the Senior Lecturers since long and as such their seniority should be fixed along with the Senior Lecturers. It was pleaded that the orders were malicious and violate Articles 14, 16, 309 and 311 of the Constitution of India as by the operation of the impugned orders the plaintiffs would be deprived of their chances of promotion and lastly it would adversely affect the pension of the plaintiffs. A registered notice was given to the defendants but the same remained unreplied.

10.The defendants appeared and contested the suit through their written statement filed on January 11, 1982. The defendants in the suit admitted that the College was taken over by the defendants but denied other allegations. The defendants, however, admitted that the services of the staff of the erstwhile private college was placed at the disposal of the Government by the Management of National College, Sirsa, but pleaded that the College was taken over on the condition that the staff of the College will be treated as new entrants and subject to the approval of Haryana Public Service Commission/Subordinate Services Selection Board, Haryana and in the letter dated November 21, 1978 whereby the College was taken over, it was clearly stated that the members of the staff of this College, who will be considered suitable for absorption in the Government services shall be treated as new entrants. It was further pleaded that on January 22, 1979 the staff of the College was appointed purely on ad hoc basis for a period of six months or till the approval of the Haryana Public Service Commission to their regular absorption in the Education Department and as such no question arose regarding considering the status of the plaintiffs. It was further pleaded in the written statement that the plaintiffs were appointed as Lecturers (fresh entrants) and their services were regularised after obtaining the approval of the Haryana Public Service Commission as Lecturers only and hence no question of their being 'Senior Lecturers' arose. It was further pleaded that after the acceptance of offer as Lecturer by the plaintiffs, they submitted their joining reports in which they themselves mentioned their post as 'Lecturer'. The defendants specifically pleaded that the services of the plaintiffs were regularised after obtaining the approval from Haryana Public Service Commission though they were addressed as Senior Lecturers in the address only, on the basis of the list Submitted by the Management, but in this very letter it was expressly made clear that the plaintiffs were appointed as 'Lecturers' only and the plaintiffs had misinterpreted this letter of March 14, 1980. The defendants denied that they had reduced the rank of the plaintiffs or that the principles of natural justice had not been followed.

11. The trial court by order dated February 9, 1982 framed the following issues:

"Issues:

1. Whether the impugned order dated July 2, 1980 rejecting the representation of the plaintiffs and Order No. 3/4-79/E(1) dated nil reducing the plaintiffs in rank from Senior Lecturer to Lecturer is invalid, illegal and liable to be set aside? OPP.

606

2. Whether the suit is not maintainable in the present form? OPD.

3. Whether the suit is bad for non-joinder of necessary parties? OPD.

4. Whether the plaintiffs have got cause of action? OPD.

5. Whether the civil court has no jurisdiction? OPD.

6. Whether the plaintiffs are estopped from filing the suit? OPD.

7. Whether the suit has not been properly valued? OPD.

8. Whether the civil court at Sirsa has got no jurisdiction to try the suit? OPD.

9. Relief." 12.The trial court after considering the entire evidence and the record, on issue No. 1, took the view that the impugned order dated July 2, 1980 rejecting the representation of the plaintiffs and the appointment order of the plaintiffs dated March 14, 1980 were legal and valid.

On issue Nos. 2 and 4 the trial court held that the plaintiffs had not challenged the order of the Government's taking over the College and they were specifically appointed as Lecturers by order dated March 14, 1980 and are bound by the agreement mentioned in the appointment letter dated March 14, 1980. Thus the plaintiffs had no cause of action and the suit in the present form was also not maintainable as the plaintiffs were appointed as Lecturers and not as Senior Lecturers and thus issue Nos. 2 and 4 were also decided against the plaintiffs.

13.On issue No. 3 the trial court took the view that the suit was bad for non-joinder of necessary parties. It took the view that other Lecturers of the College who were absorbed in Government service along with the plaintiffs were not parties to the suit and as the decision of the suit was likely to effect them, the present suit is bad for non- joinder of necessary parties. Issue Nos. 5, 7 and 8, however, were found in favour of the plaintiffs and it was held that the suit had been properly valued and the civil court had the jurisdiction to entertain the same. On issue No. 6 the trial court held that the plaintiffs were appointed as per order dated March 14, 1980 as Lecturers and they also joined their services as Lecturers (vide joining reports Ext. D-4 to D-6) and are therefore estopped from raising the contention that they were appointed as Senior Lecturers. Since the plaintiffs were appointed Lecturers and joined as such, they are estopped from raising any contention that they were appointed as Senior Lecturers or are entitled to continue as Senior Lecturers. In view of these findings, the trial court dismissed the suit.

14.The plaintiffs being aggrieved by the order of the trial court took up the matter in appeal before the Additional District Judge, Sirsa. During the hearing of the appeal it was submitted on behalf of the plaintiffs that they were appointed as Lecturers in National College, Sirsa, which used to be run by the Sirsa Education Society and in due course, were promoted as Senior Lecturers in the higher pay scale of 400-800. Thereafter, on January 22, 1979 the College was taken over by the Government and services of the entire staff, including them, were placed at the disposal of the Government and in 607 course of time their services were regularised and their status as Senior Lecturer was conceded in the letter of appointment dated January 22, 1979. Even in the letter of March 14, 1980, when their services were regularised, they were addressed as Senior Lecturers. However, by another letter of June 14, 1980, they were designated only as Lecturers and even their representation for continuation as Senior Lecturers was rejected vide letter dated July 2, 1980. It was pleaded that when the College was taken over it was made clear that the entire staff shall be adjusted in the equivalent/identical/ higher scale. Consequently, the Principals were adjusted as Principals, Lecturers as Lecturers, Demonstrators as Demonstrators and so on and so forth and since they were already working as Senior Lecturers, they were entitled to be adjusted as such. It was also urged on their behalf that 42 Senior Lecturers were confirmed vide order dated August 9, 1980 which means that there was a distinct living cadre of Senior Lecturers and that they had also taken oath as Senior Lecturers.

15.The lower appellate court noticed the evidence and took the view that much before the taking over of the College on January 22, 1979, the appellants before it were working as Senior Lecturers and were in the revised UGC scale of 700- 1600 and at the time of taking over of the College, they were holding the permanent posts of Senior Lecturer. The lower appellate court felt that the only dispute which was to be resolved was whether at the time of taking over the College by the Government, they were entitled to be adjusted as Senior Lecturers or not. The lower appellate court noticed the orders of the Haryana Government dated January 27, 1976 as well as of the Governor of Haryana dated September 21, 1976 and took the view that the question of promotion from one category (Lecturer) to another (Senior Lecturer) was done away with retrospective effect i.e.

January 1, 1973 and the scales of College Lecturer and Senior Lecturer were amalgamated and only one pay scale was formed and the distinction between the scales of Lecturer and Senior Lecturer disappeared. It, however, took the view that since the gradation list of the year 1981 as well as of the years 1984 and 1986 made it abundantly clear that 20 Lecturers are still being shown as Senior Lecturers in the same, which means that either those orders were not implemented or later on they were withdrawn and that the cadre of Senior Lecturers still exists. Therefore, it does not lie in the mouth of the defendants/respondents before it to plead that the plaintiffs/appellants could not be adjusted as Senior Lecturers. The lower appellate court agreed with the respondents before it that the plaintiffs had to be treated as new entrants but in the cadre of Senior Lecturers and accordingly set aside the judgment of the trial court and passed a decree for declaration in favour of the plaintiffs/appellants and against the defendants/respondents to the effect that the plaintiffs were entitled to be appointed as Senior Lecturers though in that category they might be treated as new entrants which means that they should not be entitled to 'Claim seniority over other Senior Lecturers, who were previously working as such.

608 16.The matter was taken in appeal on behalf of the Government of Haryana to the High Court as second appeal but that appeal was dismissed by the High Court whereupon the State filed a special leave petition and this Court remanded the second appeal to the High Court for re-hearing along with Writ Petition No. 2310 of 1987 (R.K. Sehgal v. State of Haryanal). This writ petition had been filed by certain other Lecturers contending that the decision of the High Court given earlier in R.S.A. was not binding on them as they were not parties to the suit. The High Court, after hearing the R.S.A. as remanded by this Court along with the writ petition, dismissed both of them.

17.Civil Appeal No. 3947 of 1990 and civil appeal arising out of SLP (C)No. 4702 of 1990 is against the order of the High Court dated November20, 1988 passed in the writ petition as well as in the R.S.A. Civil Appeal No. 4091 of 1991 is against the judgment of the High Court dated February 27, 1991 which was passed following the aforesaid order of the High Court dated November 20, 1988.

18.It appears to us that the lower appellate court and the High Court totally misconceived the position both on law and facts. It is clear from notification dated January 27, 1976 and the order of the Governor of Haryana dated September 21, 1976 that the distinction between the Junior Lecturers, Senior Lecturers and Lecturers (Selection Grade) had been done away with and there was only one grade of Lecturers w.e.f. January 1, 1973. It is again clear from the order of the Governor of Haryana that the question of promotion from one category to another had been done away with retrospective effect i.e. from January 1, 1973. This was the position when the private institution was taken over by the Government vide order No. 23/6/78/Edu. 1(2) dated November 21, 1978. It is clear from paragraph 2 thereof that the Haryana Government had sanctioned the taking over of the NationalCollege, Sirsa, on the terms and conditions mentioned inter alia in paragraph2 sub- paragraphs (ii) and (viii). Sub-paras (ii) and (viii) read thus:

"(ii) Such members of the staff on this college as are considered suitable for absorption in Government Service by the Haryana Public Service Commission/Haryana Subordinate Services Selection Board shall be treated as new entrants. Only Government scales of pay of respective categories shall be allowed to them and there shall be no personal grade for anyone. Their pay in the government scales will be fixed on the basis of length of service with equivalent/identical or higher time scales. There shall be no guarantee in regard to protecting their existing salaries.

(viii)The staff, subject to their suitability may be appointed temporarily, for a period of six months. Their absorption on regular basis shall however, be subject to the condition laid down in sub-para 2(ii) above." 1 Writ Petition No. 23 1 0 of 1987 609 19.It is clear from sub-para (viii) of paragraph 2 that initially, subject to suitability, the staff may be appointed temporarily for six months and their regularisation is subject to the conditions mentioned in sub-para (ii) of paragraph 2. Sub-para (ii) clearly contemplates that only the staff who are considered suitable for absorption in Government/Service by Haryana Public Service Commission/Haryana Subordinate Services Selection Board and are selected shall be treated as "new entrants".

20.It is thus clear that when the plaintiffs were appointed, they were new entrants in service and it is also clear from their letters of appointment that the Government was pleased to appoint them in consultation with the Haryana Public Service Commission as Lecturers in an officiating capacity in the scale of 700-10-1100/50-1300-assessment-50- 1600 on the terms and conditions mentioned therein. It is mentioned in this letter of appointment dated March 14, 1980 that the plaintiffs will be on probation for a period of two years unless and until the plaintiffs are appointed against permanent vacancies and that their seniority will be fixed in accordance with the departmental orders.

21.Admittedly the plaintiffs had joined as Lecturers on January 22, 1979. Learned counsel for the plaintiffs relied upon Ex. D- 1 3 which is only a covering letter to the order of appointment of individual plaintiffs as Lecturer in consultation with the Haryana Public Service Commission i.e.

order dated March 14, 1980. It does not talk of any reduction in rank from Senior Lecturer to Lecturer. In fact it conveys that on taking over of the National College, Sirsa, by the Government, the Government of Haryana, in consultation with the Haryana Public Service Commission is pleased to appoint the plaintiffs as Lecturers in officiating capacity in the scale mentioned earlier where plaintiffs Bant Rai Gupta and O.P. Khosla were mentioned as Senior Lecturers in Hindi and English respectively while conveying the order dated March 14, 1980. The idea was to convey the order to right persons and not to confer the status of Senior Lecturer. We may mention that initially the plaintiffs had joined as Lecturers on the taking over on or about January 22, 1979 and the joining reports of both Bant Rai Gupta and Rajinder Kumar Jain are reproduced hereunder:

"To The Principal, Government College, Sirsa, January 22, 1979.

Sub: Joining Report.

Dear Sir, This has reference to your appointment letter Endst. No. 4/4079-C. 1(1) dated Chandigarh (Camp Sirsa) January 22, 1979 from D.D.D.P.I. Haryana.

Respectfully, I beg to join duty as lecturer in Hindi today forenoon, i.e. with effect from January 22, 1979.

610 Thanking you, Yours faithfully, Sd/ (Bant Rai Gupta) January 22, 1979" "To The Principal, Government College, Sirsa. January 22, 1979 Dear Sir, Ref. Haryana Government letter No. 23/6/78-Edu. 1(2) dated November 21, 1978, 1 report for duty with effect from January 22, 1979 (forenoon).

This is for your kind information and record.

Yours faithfully, Sd/- (Rajinder Kumar Jain) Lecturer in English Govt. College, Sirsa'

22. The plaintiffs had knowingly accepted the offer for appointment as Lecturers and the order of appointment dated March 14, 1980 is merely an order of regularisation in consultation with the Haryana Public Service Commission and therefore it cannot be called an order of demotion. There is no right in the plaintiffs, who were working as Senior Lecturers in the erstwhile private institution to be absorbed as Senior Lecturers when the institution is taken over by the Government. As we have noticed, there could be no promotion from Lecturer to Senior Lecturer after January 1, 1973 either in Government colleges or private colleges in view of the order of the Governor, Haryana dated September 21, 1976 which came to be effective retrospectively from January 1, 1973.

23.Coming to the so-called seniority list being maintained by the Government in respect of the Senior Lecturers, it should not be forgotten that promotion from Lecturer to Senior Lecturer had been done away with with effect from January 1, 1973. If there were Senior Lecturers promoted from Lecturers before that date, there is bound to be a separate list of them but that does not mean that the erstwhile Senior Lecturers who could not be Senior Lecturers after January 1, 1973 could claim to join that list at any place. The reasons are two. Firstly as per the orders of the Governor there could not be any promotion from Lecturer to Senior Lecturer after January 1, 1973. Both the plaintiffs had been promoted after that date one in January and another in November 1973. Secondly the seniority or otherwise in Government service has to be seen in respect of the post a person is holding. Initially the plaintiffs were appointed for six months as Lecturers.

Their services were regularised as Lecturers. Therefore, there was no question of 611 their names coming into the list of Senior Lecturers. In fact it is apparent that the plaintiffs knew of their problem that is why they requested the Chief Minister for a new cadre of Lecturers or Senior Lecturers of erstwhile private colleges. Therefore neither is there any demotion of the plaintiffs nor could the order of the Government rejecting the representation have been quashed. The whole suit was misconceived. It disclosed no cause of action whatsoever and we are surprised that the lower appellate court and the High Court totally misconceived the facts.

24.The result is that Civil Appeal No. 3947 of 1990 and Civil Appeal arising out of SLP (C) No. 4702 of 1990 are accepted. The judgments of the High Court and the lower appellate court are set aside and the judgment of the trial court dated February 17, 1983 is restored. As the judgment under appeal in Civil Appeal No. 4091 of 1991 dated February 27, 1991 passed in Civil Writ Petition No. 8617 of 1988 is also based on the aforesaid judgment of the High Court in Civil Appeal No. 3947 of 1990, for the reasons aforesaid the same is also set aside and the writ petition is dismissed.

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