Dr. (Mrs.) Sushma Sharma Etc Vs. State
of Rajasthan & Ors [1985] INSC 49 (12 March 1985)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 SCR (3) 243 1985 SCALE (1)523
ACT:
Rajasthan Universities Teachers (Absorption
of Temporary Lecturers) Act 1979, Section 3 Rajasthan Universities Teachers
(Absorption of Temporary Lecturers) Ordinance 1978, Clause 3 & The
Rajasthan Universities Teachers and Officers (Special Conditions of Service)
Act, 1974.
Temporary Lecturers in the service of the
University for long years-June 25, 1975 fixed as the date of appointment, to be
eligible for absorption in permanent service-Choice of date-Whether arbitrary
and discriminatory.
Constitution of India 1950 Articles 14 &
16.
June 25, 1975 fixed as the date of
appointment for temporary lecturers to be eligible for permanent
appointment-Presciption of date-Whether has a prescribed rational nexus or
arbitrary.
HEADNOTE:
The Rajasthan Universities Teachers and
Officers (Special Conditions of Service) Act, 1974 provided for an elaborate
procedure for recruitment of teachers and officers in the universities but no
selection had been made on the basis of that Act and all appointments were made
on a temporary basis. Section 3 of the Act provided that no stop gap or
part-time arrangement can be made for more than six months. The temporary
appointments of lecturers by the Vice- Chancellor could not be made for more
than one academic year. It further provided that notwithstanding anything contained
in any other law, no teacher or officer in any University in Rajasthan should
be appointed except on the recommendation of the Selection Committee
constituted under section 4.
For a long time since the inception of the
University, there had been no regular selections and appointments of lecturers
in the University and the teachers' organisations were pressing for absorption
on substantive posts, of temporary lecturers who were working for long years.
The Government of Rajasthan therefore promulgated the Rajasthan Universities
Teachers (Absorption of Temporary Lecturers) Ordinance, 1978. Clause 3 of the
said Ordinance had an English version as well as a Hindi version. Hindi version
in Roman script read as follows:
"Samast asthai pradhyapko ke sambandh me
jo is roop me 25 June, 1975 ko ya usse purve niyukat kiye gaye the aur jo
Rajasthan Vishvavidhyalay Adhyapak (Asthai Pradhyapki Ka Amelan) 244 Adhyadesh,
1978 (1978 ka Adhyadesh s. 5) ke prarambh ke samaya is roop me karya kar rahe
hein, unki apni, apni.......
The English version of the Ordinance reads as
follows:- "All temporary lecturers as were appointed as such on or before
the 25th day of June, 1975 and are continuing as such at the commencement of
the Rajasthan Universities Teachers (Absorption of Temporary Lecturers
Ordinance, 1978 Ordinance No. 5 of 1978)." On 18th April, 1978 the
Ordinance was replaced by an Act namely the Rajasthan Universities Teachers
(Absorption of Temporary Lecturers) Act, 1979 in which identical language was
used.
The appellants in the appeals who were
temporary lecturers and teachers, were appointed temporarily by the
Vice-Chancellor by virtue of section 20A of the Universities of Rajasthan Act,
1946.
It was the contention of the appellants in
their writ petitions that lecturers had been temporarily appointed and
continued from time to time but there were no rules for their absorption into
permanent cadre. The services of the lecturers were terminated from time to
time before vacation and they were reappointed so as to deprive them of the
continuity of service which would have entitled them to Permanent absorption or
regularisation of their service.
The Single Judge allowed the writ petitions
holding that (1) the judgment in Yogendra Kumar Tiwari v. University of
Rajasthan and Others had become final as no appeals bad been preferred
therefrom, and (2) clause 3 of the 1978 Ordinance means that in order to be
eligible for screening for absorption a lecturer must be in the appointment of
the University any time or for any period before 25-6-1975 and must be a
temporary teacher on 12-6-1978 even though in between he or she might not have
been at all in service.
The Single Judge followed the interpretation
of Section 3 as made in Tiwari's case and, was of the opinion that a clear
differentiation had been made between pre-emergency and post-emergency
appointees of teachers and there was no basis or nexus for such differentiation
with the object of the Act and such differentiation amounted to discrimination
and violated Articles 14 and 16 of the Constitution. The Single Judge struck
down the consequential part of Sections 6 and 7 of the Act.
The Universities of Rajasthan preferred
appeals against the aforesaid judgment. The State Government did not. The
Division Bench was of the opinion that what was required was continuous
employment from prior to 25th June, 1975 to 12th June, 1978 to be eligible for
screening for absorption and that 25th June, 1975 was chosen such as any other
date and there was no differentiation between pre-emergency and post- emergency
appointees for absorption as lecturers. The Division Bench set aside the
decision of the Single Judge.
245 In the Appeals to this Court on the
question: (i) what is the true meaning of Section 3 of the Act of 1979, and
(ii) whether by choice of the date of 25th June, 1975, an invidious distinction
has been made between pre-emergency and post-emergency appointees, which has no
nexus with the purpose of the Act, and as such that Act is violative of
Articles 14 and 16 of the Constitution.
Dismissing the Appeals, ^
HELD: 1. The object of the Rajasthan
Universities Teachers (Absorption of Temporary Lecturers) Ordinance, 1978 which
was replaced by the Rajasthan Universities Teachers (Absorption of Temporary
Lecturers) Act 1979 was to provide for absorption of temporary lecturers of
long standing. So therefore experience and continuous employment were necessary
ingredients. The Hindi version of the Ordinance used the expression " Ke
prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning
"and are continuing" to work as such at the time of the commencement
of the Ordinance Keeping the background of the purpose of the Act in view that
would be the proper construction and if that is the proper construction which is
in consonance with the English version of the Ordinance and the Act as well as
with the object of the Act, then the Act and the Ordinance should be construed
to mean that only those would be eligible for screening who were appointed
prior to 25.6.1975 and were continuing at the time of the commencement of the
Ordinance i.e. 12.6.1978 i.e. approximately about three years. [259B- D]
2. The English version of clause (3) presents
no difficulty. Those who are appointed before 25.6.1975 and "are
continuing" on the date when the Ordinance came into effect i.e.
12.6.1978. So therefore "were continuing as such.... " in the Act
must mean that to be eligible for absorption these temporary lecturers should
have been in continuous employment from a date prior to 25.6.1975 to the date
of the commencement of the Ordinance of 1978 i.e.
12.6.1978. [258H; 259A]
3. The interpretation of clause (3) of the
Ordinance of 1978 in Tiwari's case could not in the facts and circumstances be
treated to be such an authoritative pronouncement which will bind the courts in
subsequent decisions in the interpretation of an Act which was passed soon
thereafter, if on a proper construction of the subsequent enactment, it appears
that the expression had not been correctly interpreted. [258G-H] The criterion
fixed for screening for absorption was not an irrational criteria a criterion
not having any nexus with the purpose of the Act. Therefore, the criticism that
a teacher who was working even for two or three months only before 25.6.1975
and then with long interruptions was in employment of the University at the
time of the commencement of the Ordinance would be eligible but a teacher who
had worked continuously from 26.6.1975 i.e. after the date fixed i.e. 25th
June, 1975 for three years would be in-eligible and as such that will be
discrimination against long experience, cannot be accepted. Such a construction
would be an unreasonable construction unwarranted by the language used in the
provisions concerned. [260A-C] 246 5(i) If a particular period of experience is
fixed for screening or for absorption, it is within the wisdom of the
legislature, and what period should be sufficient for a particular job or a
particular employment is not subject to judicial review. [260C] (ii) Improper
application of law in certain cases does not make the law had per se. Useless
law similarly is not always arbitrary law. [261A] (iii) Wisdom or lack of
wisdom in the action of the Government or legislature is not justifiable by
court. To find fault with a law is not to demonstrate its invalidity.
Mere errors of Government are not subject to
judicial review. What is best is not always discernible.
Metropolis Theater Company v. City of Chicago
and Ernest J. Magerstadt, 57 Lawyers' Edition 730., Prag Ice & Oil Mills
& Anr. Etc. V. Union of India, [1978] 3 SCR 293 at 333., D.S. Nakara and
Others v. Union of India [1983] 2 SCR 305=[1983] 2 SCR 165 referred to.
6. If 25th June, 1975 was taken in order to
differentiate between pre emergency and post-emergency appointees for consideration
for absorption then there cannot be any doubt that such a differentiation would
amount to are arbitrary discrimination. Because the fact whether one was
pre-emergency appointee and another a post-emergency was wholly irrelevant to
the object of the Act and the Ordinance i.e absorption of temporary lecturers
of long standing working in the university. Therefore to the question of
absorption of temporary lecturers of long standing imposition of emergency in
the country and appointment prior or subsequent thereto is wholly irrelevant
and has no nexus. Differentiation on a ground which is irrelevant amounts to
discrimination.
[261B-D] In Re The Special Courts Bill 1978,
[1979] 2 SCR 476 Gopalan vs. State of Madras [1950] SCR 88., State of
Travencore Cochin vs. Bombay Company Limited, [1052] 1112., State of West
Bengal vs. Union of India, [1964] l SCR 371, referred to.
7. According to the Statement of Objects and
Reasons of the Ordinance and bearing in mind the preamble of the Act, the main
object was to make a specific provision for the selection of teachers and
officers in the universities which had not been done for a long time. Temporary
appointments against vacant posts had been made by the universities and such
posts had been continuing in some cases for ten years. The preamble to the Act
of 1979 is a key to unfold the intention of the legislature to make this law.
It lays down that the Act was to provide for the absorption of temporary
lecturers of long standing working in the universities of Rajasthan. [264C-D]
8.A certain tenure of service for the purpose of absorption was the object to
be achieved and this has a rational nexus with the object. The prescription of
the date from which the period should begin and the date on which it should end
were merely incidental to the purpose. Any date perhaps could 247 have served
the purpose which took into consideration long tenure. What was intended by the
use of the expression 'appointed on or before 25.6.1975' and must have
continued until 12.6.1978 being the date of coming into force of the Ordinance
indicated that there should have been near-about three years experience for
being eligible for absorption.
The date was a handy date. Handy in the sense
it came quickly in the minds of some people. At least there is no evidence that
there was any attempt to separate or penalise pre-emergency appointee and no
decision was taken by any appropriate authority and no such evidence is there
to make a distinction between pre-emergency and post-emergency appointees. Being
in the employment at the time of coming into operation of the Ordinance was the
pre-condition i.e.
12th June, 1978. Naturally some day anterior
to that date had to be indicated to ensure long tenure of experience and 25th
June, 1975 was chosen because it was as good a date as any other. [266B-D]
9. It may be that 25th June, 1975 has some
odour to some people. It may be that it revised many attitudes but this is
wholly irrelevant. Any other date might have been chosen.A particular period
was taken to make a person eligible for being screened for absorption and
regularisation and if the beginning date happens to coincide with a particular
date about which some people have some memories, the law would not become bad.
That would be taking too sensitive a view of human expressions. [267B-C]
10. For the regularisation of teachers,
experience was the object to be found out. Certain period of experience was
necessary for the basis for making the regularisation. The period of experience
would be how much and the date of experience should begin from what time are
within the legislative wisdom and there is nothing in this case to indicate
that the starting point i.e. to be in service on or before 25.6.1975 was an
arbitrary choice, [269D-E] State of Mysore & Anr. v. S.V. Narayanappa,
[1967] 1 SCR 128, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 3285, 3284, 3286 & 3287-89182 From the Judgment dated 17.2.1982 of the
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.R- Special
Appeal Nos. 192/81, 191/81, 196/81, 194/81, 193/81, 195/81 respectively.
Dr. Y.S. Chitale, Sobhagmal Jain and S.K Jain
for the Appellants.
G.L. Sanghi, R.K. Garg, Manoj Swarup, Ms.
Lalita Kohli, B.D. Sharma and Aruneshwar Gupta for the Respondents.
The Judgment of the Court was delivered by:
248 SABYASACHI MUKHARJI, J. These appeals by
special leave arise out of the judgment of the Division Bench of the Rajasthan
High Court. The appeals are by the original petitioners before the learned
single judge of the Rajasthan High Court and who having succeeded before the
learned single judge became respondents in the appeals filed by the University
before the Division Bench. The appellants in these appeals and other connected
appeals were temporary lecturers and teachers on various subjects. They were
appointed temporary lecturers by the Vice-Chancellor by virtue of section 20A
of the University of Rajasthan Act, 1946.
Section 4 of the Rajasthan Universities
Teachers and Officers (Special Conditions of Service) Act, 1974 hereinafter
referred to as 1974 University Act provides for regular selection by Selection
Committees. Section 3 of the 1974 Act provides that no stop gap or part-time
arrangement can be made for more than six months. The temporary appointments of
lecturers by the Vice-Chancellor cannot be made for more than one academic
year. Further sub section (1) of section 3 of the said Act provides that
notwithstanding anything contained in the relevant law as from the commencement
of the said Act, no teacher or officer in any University in Rajasthan should be
appointed except on the recommendation of the Selection Committee constituted
under section 4. Section 4 of the Act provided for the constitution of the
Selection Committee for selection of lecturers and officers in the University,
and dealt with certain other aspects and section 5 provides for the procedure
to be followed by the Selection Committee. The other provisions of the said Act
are not necessary to be referred to. It appears that for along time, indeed since
the inception of the University, there have not been regular selections and
appointments of lecturers in the University and as such the teachers'
organisations were pressing for absorption on substantive posts of temporary
lecturers who were working for long years. It is not necessary to deal in
detail on this position, One Shri Y.K. Tiwari filed a writ petition before the
Rajasthan High Court. The case was disposed of by a learned single judge of the
Rajasthan High Court on 30th August, 1978 being Civil Writ Petition No. 446 of
1978-Yogendra Kumar Tiwari v. University of Rajasthan and Others. The
petitioner in that case was appointed as a lecturer in Law on temporary basis
after being selected by the Selection Committee by an earlier order dated 10th
of January, 1975. The said petitioner had worked upto 19th June, 1975 but he
was allowed his salary upto 29th May, 1975 as his term was not extended there
after. He was not allowed any salary for vacation also as he had 249 not
completed six months' service on the last day of the session. The petitioner
was reappointed as a lecturer on a temporary basis by an order dated 13th
September, 1975. As mentioned hereinbefore, there was long standing grievance
of the temporary lecturers and therefore the Government of Rajasthan
promulgated The Rajasthan Universities Teachers (Absorption of Temporary
Lecturers) Ordinance, 1978 which is hereinafter referred to as the Ordinance of
1978. It was the case of the petitioner that he was eligible for screening.
It was further contended that the previous
Vice-Chancellor before handing over charge of his office had passed an order
dated 2nd July, 1977 condoning the break in service of about 25 temporary
lecturers in University belonging to the various departments including the faculty
of law- Para or clause 3 of the said Ordinance of 1978 had an English version
as well as Hindi version. In view of the fact that certain controversy is
there, it is necessary to set out both these versions. Hindi version written in
Roman script reads as follows:
"Samast asthai pradhyapko ke sambandh me
jo is roop me 25 June, 1975 ko ya usse purve niyukat kiya gaye the aur jo
Rajasthan Vishvavidhyalay Adhyapak (Asthai Pradhyapko Ka Amelan) Adhyadesh,
1978 (1978 ka Adhyadesh S 5) ke prarambh ke samaya is roop me karye kar raha
hein, unki apni apni asthai niyukatiyo ki tarikho ko lagoo susangat vidhi ke
adhin sambandhit vishvavidhyalaya dwara vihit nuntam ahartaon ko sammilit karte
hue patrta ki sharto ki unke dwara purti ke adhyadhin aur sambandhit vibhag me
pradhyapko ki adhishthai riktiyon ki uplabhyata ki bhi adhyadhin rehte hue,
dhara 4 ke anhin gathit anuveekshan samiti ki sifarish per unke amelan aur
adhishthai niyukti per sambandhit vishvidhyalay dwara vichar kiya jayega."
(underlined by us) English version of the Ordinance reads as follows :-
"All temporary lecturers as were appointed as such on or before the 25th
day of June, 1975 and are continuing as such at the commencement of the
Rajasthan Universities Teachers (Absorption of Temporary Lecturers) Ordinance,
1978 (Ordinance No. 5 of 1978) shall be considered by the University concerned
for their absorption and substantive appointment on the recommendation of the
Screening 250 Committee constituted under section 4 subject to their fulfilling
the conditions of eligibility including minimum qualifications prescribed by
the University concerned under the relevant law as applicable on the respective
dates of their temporary appointments and subject also to the avail ability of
substantive vacancies of lecturers in the department concerned."
(underlined by us) The learned single judge in his judgment out of which
appeals were taken to the Division Bench and from which appeals arise came to
the conclusion that (i) the judgment in Tiwari's case had become final as no
appeal had been preferred therefrom and (ii) clause 3 of the 1978 Ordinance
means that in order to be eligible for screening for absorption a lecturer must
be in the appointment of the University any time or for any period before
25.6.1975 and then again she or he must be a temporary teacher on 12.6.1978
even though in between he or she might not have been at all in service.
The learned judge found that if Hindi version
of clause 3 be given effect to then, to be eligible one must have been appointed
before 25th June, 1975 and must have been in the employment as such at the
commencement of the Ordinance- In the English version of this Ordinance, the
words used are "and are continuing." This, according to the learned
judge, was not the correct translation of the Hindi version and according to
his reading, instead of the words used as "and are continuing as
such", words such as "and are continuously in service or have been
continuously in service" should have been used if continuous employment from
prior to 25th June, 1975 to the 12th of June, 1978 was required. The learned
judge came to the conclusion that in the Hindi version of the Ordinance, only
two conditions were required to be fulfilled for absorption i.e. appointment
before 25th June, 1975 and continuing as such at the time of the commencement
of this Ordinance i e. 12th June, 1978. Taking that in view, the learned judge
made the rule absolute and directed the respondents to appoint the petitioner
to his substantive post as the screening had already been done. This decision
was not appealed from and it has been contended on behalf of the appellants
before us that 106 lecturers who were working temporarily have all become
permanent. On 18th of April, 1978 the Ordinance was re placed by an Act namely
The Rajasthan Universities Teachers (Absorption of Temporary Lecturers) Act,
1979 in which identical 251 language was used. It was contended that
interpretation given in Tiwari's case was accepted by the legislature as
correct. We shall deal with this contention later. But the fact that there was
no appeal preferred by the State from judgment in Tiwari's case might be that
the judgment was delivered by the learned single judge on 30th August, 1978 and
the Ordinance expired on 31st August, 1978. On 18th of April, 1979 however the
Ordinance was replaced by 1979 Act.
So far as the present appeals before us are
concerned, the following questions fall for our consideration:
(1) whether, fixing of the date here namely
25.6.1975 which happens to be the date on which emergency was clamped, for
considering the lecturers of the University as eligible for screening under
section 3 of the Rajasthan Universities Teachers (Absorption of temporary
Lecturers,) Act, 1979 makes the Act invalid on the ground of differentiation
between pre-emergency and post-emergency appointments, in other words whether
the date 25th June, 1975 when the emergency was clamped on the country had any
nexus with the purpose of this Act ? (2) what is true meaning of the expression
used in section 3 of the Act ? The short facts are that there were irregular
appointments in the Rajasthan University as lecturers for a very long time. In
other words, lecturers had been temporarily appointed and continued from year
to year but there were no rules for their absorption into permanent cadre.
Furthermore it is undisputed that the services of the lecturers were terminated
from time to time before vacation and they were reappointed so as to deprive
them of the continuity of service which would have entitled them to permanent
absorption or regularisation of their services.
The Rajasthan Universities' Teachers and
Officers (Special Conditions of Service) Act, 1974-hereinafter referred to as
the 1974 Act had provided elaborate procedure for recruitment of teachers and
officers in the universities. But no selections had been made on the basis of
that Act and all appointments were made on temporary basis. In 1978 as noted
before the Ordinance of 1978 was promulgated with the object to provide for the
absorption of temporary 252 lecturers of long standing working in the
universities of Rajasthan. According to the University only those who had been
appointed before 25th June, 1975 and continued to be in service on the date of
the coming into operation of the Ordinance i.e. 12th June, 1978 were eligible.
As the practice of the University, it was alleged, was to break the service,
one Tiwari moved the High Court and the decision of the High Court and the
basis of the said decision have been set out hereinbefore The learned single
judge in this case on examination of the materials came to the conclusion that
the original petitioners, the appellants herein had succeeded in establishing
the fact that the date of 25th June, 19 5 was arbitrarily fixed which had no nexus
with the object or the purpose of the said Act. Therefore he made the rules
absolute. The learned single judge came to the conclusion that under the said
Ordinance and under the said Act, the date of 25th June, 1975 offended Articles
14 and 16 of the Constitution.
The learned single judge had dealt in his
judgment with the petition of Dr. Rukmani. He has set out the facts in detail
It is not necessary to set these out in detail but briefly these are: She
passed her M.A. in Hindi in 1969, she did her Ph D. in Hindi in 1973 from the
University of Rajasthan. On 28th June, 1976 she was appointed tutor in Hindi on
a temporary basis for a period of three months in the University of Rajasthan.
She was permitted to work as tutor on account of various extensions and
ultimately she became lecturer.A Selection Committee of the University selected
her for lecturer. She was appointed as such with effect from 9th October. 1977.
Her services were terminated with effect from 5th August, 1979 by an order of
the Vice- Chancellor.
The screening done as per order of the High
Court in Tiwari's case resulted in absorption of about 106 lecturers who were
working temporarily. Orders to this effect were issued on 17th August, 1978.
Since the present appellants being the petitioners before the High Court were
not appointed as lecturers on or before 25th June, 1975, they were treated as
ineligible for being screened under the provisions of the Ordinance of 1978. It
may be mentioned that some of them appeared in the selection subsequently and
were found eligible except two of them, who have been absorbed as lecturers.
The said Ordinance of 1978 as mentioned hereinbefore expired on 31st August,
1978 and a Bill was introduced and which after having undergone some amendments
became the Act 253 Of 1979 and is known as Rajasthan Universities Teachers
(Absorption of Temporary Lecturers) Act, 1979 (hereinafter referred to as the
Act of 1979). Having received the assent of the Governor on 17th April, 1979 it
was published in the Rajasthan Gazette on 18th April, 1979. The main alteration
and amendment was that whereas the entire process of screening of appointment
had to be finished by 31st August, 1978, the time was thereafter extended till
31st August, 1979.
Dr. Rukmani and others applied in pursuance
of the advertisement issued by the University. The Selection Committee held the
interviews on 16th and 17th July, 1979.
She was considered by the Selection
Committee. The Selection Committee did not select the said petitioner and she
was accordingly rejected by the Selection Committee. Dr. Rukmani had challenged
the Ordinance of 1978 and the Act of 1979 on the one hand and also the
Selection Committee's decision by which she was assessed on the other and the
respondents were selected under the Act of 1974.
The point that was canvassed mainly on behalf
of the petitioners before the learned single judge related to the validity of
the Ordinance of 1978 and the Act of 1979, since both the Ordinance as well as
the Act had got common feature of making a teacher eligible for consideration
by the Screening Committee, only if he or she was in the service of the
University on or before 25th June. 1975 and further that he or she was also in
the service of the University on 12th June, 1978, the date when the Ordinance
became effective by publication in the Gazette.
Section 3 of the Act of 1979 reads as
follows:- "3. Substantive appointment of temporary lecturers.- All
temporary lecturers as were appointed as such on or before the 25th day of
June, 1975 and were continuing as such at the commencement of the Rajasthan
Universities Teachers (Absorption of Temporary Lecturers) Ordinance,
1978(Ordinance No. 5 of 1978) shall be considered by the University concerned
for their absorption and substantive appointment on the recommendation of the
Screening Committee constituted under section 4 or section 5, as case may be
subject to their fulfilling the condition of eligibility including minimum
qualifications prescribed by the University concerned under the relevant law as
applicable on the 254 respective dates of their temporary appointments and
subject also to the availability of substantive vacancies of lecturers in the
department concerned." Sections 5 and 6 were as follows:- "5-
Re-Screening.(1) Notwithstanding any-thing contained in section 7 or any other
provision of the Rajasthan Universities Teachers (Absorption of Temporary
Lecturers) Ordinance, 1978 (Ordinance No. 5 of 1978), the services of temporary
lecturer, who was considered for substantive appointment by a Screening
Committee but was not found suitable, shall be deemed not have terminated and
he shall continue to be a temporary lecturer till he is again considered for
substantive appointment under section 3 after his rescreening under sub-section
(2) of this section.
(2) A temporary lecturer who was considered
for substantive appointment by the Screening Committee referred to in section
4, but was not found suitable shall be again considered by the Screening
Committee reconstituted in the same manner as is provided in that section.
6. Appointment to be under the Act No. 18 of
1974.- The lectures appointed to the substantive posts in pursuance of the
provisions of the Rajasthan Universities Teachers (Absorption of Temporary
Lectures) Ordinance, 1978 (Ordinance No. 5 of 1978) or of this Act shall be
deemed to have been appointed under the provisions of the Rajasthan
Universities Teachers and Officers (Special Conditions of Service) Act, 1974
(Act No. 18 of 1974)." Section 8 provides for the termination of the services
of the temporary lecturers not substantively appointed and stated that the
services of a temporary lecturer who was considered for substantive appointment
under sections 3, 4 and 5 but was not substantively appointed on or before the
31st day of August, 1979 would, stand terminated on the expiry of that day.
The learned single judge was of the view that
the Act had application to all the temporary lecturers who were working in the
various universities in Rajasthan on the relevant dates and unless 255 they
were selected by the screening committee under the said Act, their services
were to be terminated by 31st August, 1978. The object of the Act, according to
the learned judge, was to regularise the services of those who were found
suitable after screening and to fulfil the conditions of section 3 and then
terminate the services of all other temporary teachers on expiry of 31st
August, 1978.
The main controversy raised before the
learned single judge of the High Court related to the fixation of the two dates
namely 25th June, 1975 and secondly the date of the commencement of the
Ordinance namely 12th June. 1978. But what was pressed was about the validity
of the date fixed as 25th June, 1975 as the date on or before which the teacher
should have been functioning as a teacher in a particular University. Was this
date arbitrary ? It is stated by the learned judge that the court enquired from
the Advocate-General who appeared on behalf of the State and from the learned
counsel of the Rajasthan University as to what had prompted the fixing of the
date as 25th June, 1975.
It may be mentioned as it is well-known that
25th June, 1975 was the date on which last emergency was introduced in the
country. The learned Advocate-General had submitted before the learned single
judge that it was at the instance of the Rajasthan University and the Vice
Chancellor that The date was so selected. The standing counsel, the learned
judge recorded, took the stand that so far as the University was concerned, it
had never suggested the above date and he had got no reason to justify the
fixing of that date. The learned judge summoned the secretariat file. It was
revealed that the date was fixed precisely on account of the suggestion of the
Vice-Chancellor of the Rajasthan University. The learned judge extracted from a
portion of a letter dated 30th January, 1978 from the file of the University
which reads as follows:- "It is proposed that all the temporary lecturers
appointed on or before 25.6. 1975 be screened by a Screening Committee
appointed by the University concerned and on the recommendation of screening
committee they be absorbed subject of course to the availability of the
vacancies in the department and the candidate fulfilling the prescribed
qualifications.
25th day of June, 1975 has been suggested 256
as crucial date taking into account the fact that we could take care of all
appointments made before the national emergency which was clamped with effect
from 25.6.1975." The two drafts of the Ordinance which were sent with the
letter also contained the alteration in the date which had been changed from
1st day of September, 1973 to 25th June, 1975. This was also noted by the
learned single judge.
It was submitted before the learned single
judge that certain representations were made by the University teachers and
their associations to change the date from 1973 to 1975 and to substantiate
that allegation, the above file was placed before the Court. However, the
recommendations contained in the file, according to the learned Single judge,
nowhere contained 25th June, 1975 as the date of the Ordinance. In their
representations there was a demand that the earlier Government decision to fix
the date of eligibility as 1st of September, 1973 should be altered to a date
so as to cover cases of all other lecturers who had been appointed later on
also. It is evident, therefore, in view OF the history of appointment of
temporary lecturers, that the intention was to regularise the appointments
taking into consideration certain tenure of experience or office into
consideration, It was initially suggested that 1973 should be taken as the date
to begin with i.e. who should be on the roll of lecturers on that date in 1973
but due to representations on behalf of the associations of teachers so as to
include subsequent appointees, it was changed. Why this particular date was
chosen, there is no specific answer but there is a letter from the
Vice-Chancellor which indicated that such date should be taken, because 25th
June, 1975 was the date of emergency, that date should be taken as he said ' we
should take care of all appointments before the national emergency". In
order to appreciate the problem of regularisation, the learned single judge
noted that the University of Rajasthan had been adopting a practice of
appointing temporary lecturers for a fixed period and after a gap to reappoint.
It had created a controversy and several teachers were found ineligible on
account of this break in service and this had led to the earlier writ petition
which we have mentioned hereinbefore.
The earlier writ petition (Tiwari's) had
interpreted clause (3) now section 3 of the Act to mean that continuity of
service between 25.6.1975 to 12.6.1978 was not necessary and all that was
required was that one must be in service on or before 25.6.1975 and then 257
again on 12 6.1978 This is a point on which we would have to express our
opinion as to whether the learned single judge was correct in his
interpretation.
On the basis of the interpretation of section
3 of the Act as made by Tiwari's case (supra) by which the learned single judge
felt himself bound and with which the learned single judge agreed, he
accordingly made the rule absolute The learned single judge was of the opinion
that a clear differentiation had been made between pre-emergency and
post-emergency appointees of teachers and there was no basis or nexus for such
differentiation with the object of the Act and such differentiation amounted to
discrimination and violated Articles 14 and 16 of the Constitution. The learned
single <: judge also struck down the consequential part of section 6 and 7
of the Act as mentioned hereinbefore.
The universities of Rajasthan preferred
appeals against the judgment and order of the learned single judge. The State
Government did not. The Division Bench was unable to accept the interpretation
of section 3 of the Act as made by the learned single judge and was of the
opinion that what was required was continuous employment from prior to 25th
June, 1975 to 12th June, 1978 to be eligible for screening for absorption and
the Division Bench was of the view that 25th June, 1975 was chosen such as any
other date and there was no differentiation between pre-emergency and post-
emergency appointees for absorption as lecturers. The Division Bench therefore
set aside the decision of the learned single judge.
Being aggrieved by the said decision, the
original petitioners have preferred these appeals by special leave to this
Court.
As mentioned hereinbefore two points require
consideration by us - (i) what is the true meaning of section 3 of the Act of
1979 and (ii) whether by choice of the date of 25th June, 1975, an invidious
distinction has been made between pre-emergency appointees and post- emergency
appointees, which has no nexus with the purpose of the Act and as such the Act
is violative of Articles 14 and 16 of the Constitution.
As mentioned hereinbefore, the learned single
judge of the Rajasthan High Court in these appeals had relied heavily on the
interpretation made in Y. K Tiwari's case (supra) of clause (3) of 1978
Ordinance. Before us also in these appeals this was reiterated.
258 It was contended that that was the only
possible construction of clause (3) of 1978 Ordinance and necessarily of
section 3 of 1979 Act. We shall presently deal with this contention. It was
further contended that this clause (3) of 1978 Ordinance having received
judicial interpretation and when the legislature enacted the 1979 Act, the
legislature had before it this interpretation and when a particular form of
legislative enactment had received authoritative interpretation whether by
judicial decision or by a long course of practice is again adopted in framing
of a later statute, it is sound rule of construction to hold that the words so
adopted were intended by the legislature to bear the meaning which had been so
put upon them. (See Craies on Statute Law, Seventh Edition p. 139).
This argument, however, cannot in this case
be accepted. As we have noted before, the fact that there was no appeal perferred
from the learned single judge's decision in Y.K Tiwari's case is of not much
significance in the facts and circumstances of this case because the Ordinance
which was the subject matter of interpretation by the judgment expired within
two days of the delivery of the judgment and perhaps on this ground it was not
thought necessary to pursue this matter. Secondly, the new Act came very soon
thereafter within a period of about six months.
Therefore it could not be said that there was
any long practice or of any judicial interpretation of long standing, Indeed
this aforesaid rule of interpretation which we have noted hereinbefore should
be used in a careful manner It was observed by Lord Scarman in the case of R v.
Chard (1984 A.C. p. 295) that the theory which has been noted hereinbefore was
not a canon of construction of absolute obligation but only a presumption in
the circumstances to be taken in judicial interpretation. This proposition,
according to Lord Scarman, is well-settled.
In the aforesaid view of the matter, we are
of the opinion that the interpretation of clause (3) of the Ordinance of 1978
in Tiwari's case could not in the facts and circumstances be treated to be such
an authoritative pronouncement which will bind the courts in subsequent decisions
in the interpretation of an Act which was passed soon thereafter, if on a
proper construction of the subsequent enactment, it appears that the expression
had not been correctly interpreted. We have noted the Hindi version of clause
(3) as well as the English version. The English version presents no difficulty
namely those who are appointed before 25.6.1975 and "are continuing"
on the date when the Ordinance came into effect i.e. 12.6.1978.
259 So therefore "were continuing as
such .. " in the Act must mean that to be eligible for absorption these
temporary lecturers should have been in continuous employment from a date prior
to 25.6.1975 to the date of the commencement of the Ordinance of 1978 i.e.
12.6.1978.
The object of this legislation was to provide
for absorption of temporary lecturers of long standing. So therefore experience
and continuous employment were necessary ingredients. The Hindi version of the
Ordinance used the expression "ke pratambh ke samaya is roop me karya kar
rahe hein" is capable of meaning "and are continuing" to work as
such at the time of the commencement of the Ordinance. Keeping the background
of the purpose of the Act in view that would be the proper construction and if
that is the proper construction which is in consonance with the English version
of the Ordinance and the Act as well as with the object of the Act then in our
opinion the Act and the Ordinance should be construed to mean that only those
would be eligible for screening who were appointed prior to 25.6.1975 and were
continuing at the time of the commencement of the Ordinance i e. 12.6.1978 i.e.
approximately about three years. If that is
the correct reading, then we are unable to accept the criticism that those who
were for a short period appointed prior to 25.6.1975 then again with
interruption were working only at the time of the commencement of the Ordinance
i.e. 12.6.1978 would also be eligible. In other words people with very short
experience would be eligible for absorption. That cannot be the purpose of the
Act. It cannot be so read reasonably. Therefore on a proper construction it
means that all temporary lecturers who were appointed as such on or before
25.6.1975 and were continuing as such at the commencement of the Ordinance
shall be considered by the University for screening for absorption. The
expression "were continuing is significant. This is in consonance with the
object of the Act to ensure continuity of experience and service as one of the
factors for regularising the appointment of the temporary lecturers. For
regularising the appointment of temporary lecturers, certain continuous
experience is necessary. If a legislature considers a particular period of
experience to be necessary, the wisdom of such a decision is not subject to
judicial review.
Keeping the aforesaid reasonable meaning of
clause (3) of the Ordinance and section 3 of the Act in view, we are of the
opinion that the criterion fixed for screening for absorption was not an
irrational criterion not having any nexus with the purpose of the Act
Therefore, the criticism that 260 a teacher who was working even for two or
three months only before 25.6.1975 and then with long interruptions was in
employment of the University at the time of the commencement of the Ordinance
would be eligible but a teacher who had worked continuously from 26.6.1975 i.e.
after the date fixed i.e. 25th June, 1975 for three years would be ineligible
and as such that will be discrimination against long experience, cannot be
accepted. Such a construction would be an unreasonable construction unwarranted
by the language used in the provisions concerned. It is well-settled that if a
particular period of experience is fixed for screening or t`or absorption, it
is within the wisdom of the legislature, and what period should be sufficient
for a particular job or a particular employment is not subject to judicial
review.
We need not refer to a large number of
decisions on this point.
Another contention was urged before us that
if it was held that the proper interpretation of section 3 of the Act of 1979
is that in order to be eligible for screening for absorption one should be
appointed before the 25th June, 1975 and continued to be a teacher on the day
of the coming into operation of the Ordinance i.e. 12.6.1978 i.e.
continuously for a period of about three
years then the Act cannot apply to anyone. It was submitted that in Rajasthan
universities there was the practice to keep temporary teachers with breaks and
nobody could continuously hold the post for a continuous period of three years
indeed not more than six months. It was urged that the practice prevalent in
the universities was to break the service of the temporary lecturers and not to
allow them continuously to work. The proper interpretation would be that these
breaks i.e. a break for a month or so during vacation should be considered as
'functional gaps' and temporary teachers who had functional gaps but were in
fact in continuous service should be treated for all practical purposes to be
in continuous service. It was submitted on behalf of the universities as well
as the State Government before us that the universities as well as the State
Government had always taken the stand that continuous service was covered by
the Act and continuous service included those temporary teachers who had
'functional gaps' but were in fact in continuous service. Looked at from that
point of view there was no question of the Act not being of any use. It was
further submitted that none of the respondents who had been absorbed had that
qualification If that is so, the appointments may be bad and these facts may be
looked into if appropriate 261 applications are made by the appellants and
others. Improper application of law in certain cases does not make the law b ad
per se. Useless law similarly is not always arbitrary law.
Next comes the question whether the choice of
25th June, 1975 as the date prior to which temporary teachers must have been in
employment to be eligible for screening is bad as such. If 25th June, 1975 was
taken in order to differentiate between pre-emergency and post-emergency
appointees for consideration for absorption then there cannot be any doubt that
such a differentiation would amount to an arbitrary discrimination. Because the
fact whether one was a pre-emergency appointee and another a post-emergency
appointee was wholly irrelevant to the object of the Act and the Ordinance i.e.
absorption of temporary lecturers of long standing working in the university.
Therefore to the question of absorption of temporary lecturers of long
standing, imposition of emergency in the country and appointment prior or
subsequent thereto is wholly irrelevant and has no nexus. Differentiation on a
ground which is irrelevant amounts to discrimination. This is well-settled by
numerous decisions of this Court. It is not necessary to refer to these
decisions. It is sufficient if we mention the decision of this Court In Re The
Special Courts Bill.
1978(1) where at page 534 the learned Chief
Justice inter alia laid down the following principles to judge validity under
Article 14 of the Constitution:-
1. The first part of article 14, which was
adopted from the Irish Constitution, is a declaration of equality of the civil
rights of all persons within the territories of India. It enshrines a basic
principle of republicanism. The second part, which is a corollary of the first
and is based on the last clause of the first section of the Fourteenth
Amendment of the American Constitution, enjoins that equal protection shall be
secured to all such persons in the enjoyment of their rights and liberties
without discrimination of favouritism.
It is a pledge of the protection of equal
laws, that is, laws that operate alike on all persons under like circumstances.
2. The State, in the exercise of its governmental
power, has of necessity to make laws operating differently on (1) [1919] 2 S.C.
R. 476.
262 different groups or classes of persons
within its territory to attain particular ends in giving effect to its
policies, and it must possess for that purpose large powers of distinguishing
and classifying persons or things to be subjected to such laws.
3. The Constitutional command to the State to
afford equal protection of its laws sets a goal not attainable by the invention
and application of a precise formula. There fore, classification need not be
constituted by an exact or scientific exclusion or inclusion of persons or
things. The Courts should not insist on delusive exactness or apply doctrinaire
tests for determining the validity of classification in any given case.
Classification is justified if it is not
palpably arbitrary.
4. The principle underlying the guarantee of
article 14 is not that the same rules of law should be applicable to all
persons within the Indian territory or that the same remedies should be made
available to them irrespective of differences of circumstances. It only means
that all persons similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws would have to be
applied to all in the same situation, and there should be no discrimination
between one person and another if as regards the subject matter of the
legislation their position is substantially the same.
5. By the process of classification, the
State has the power of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted on a particular
subject.
This power, no doubt, in some degree is
likely to produce some inequality; but if a law deals with the liberties of a
number of well-defined classes, it is not open to the charge of denial or equal
protection on the ground that it has no application to other persons.
Classification thus means segregation classes which have a systematic relation,
usually found in common properties and characteristics. It postulates a
rational basis and does not mean herding together of certain persons and
classes arbitrarily.
263
6. The law can make and set apart the classes
according to the needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the classification should
never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary
but must be rational that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the persons grouped
together and not in others who are let out but those qualities or
characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from others
and. (2) that differentia must have a rational relation to the object sought to
be achieved by the Act." In support of the contention that 25th June, 1975
was chosen because of the emergency. reliance was placed on certain
communications from the Vice-Chancellor which have been noticed by the learned
single judge. The learned single judge came to the conclusion that was the
basis i.e to differentiate between pre and post emergency appointees. The
Division Bench did not accept this view. We are in agreement with the views of
the Division Bench.
It appears to us that the primary object of
the Ordinance as well as of the Act was to provide for the absorption and
regularisation of temporary lecturers of long standing in the universities in
Rajasthan. What was intended was that the temporary teachers of long standing
should be screened and 25th June, 1975 was taken r because it was as convenient
a date as any other. While interpreting the provisions of any Act, what is
necessity is the intention of the, legislature and that has to be found out
from the language used, it is not the view of the Vice-Chancellor or of an
officer or authority who might or might not have put a note to the Bill. Was
there anything to spell out the intention of the legislature in fixing a
particular date? It Is well-settled that speeches of the Members of the House
could at best be indicative of the subjective intention or the speaker but
would not reflect the inarticulate mental processes 264 lying behind the
majority of those who voted which carried the bill to become an Act. The
objective must be seen. The objective was to fix some tenure to make temporary
teachers eligible for screening for absorption. In this connection reference
may be made to the observations of this Court in Gopalan v. State of Madras.
(1) The same view was also reiterated in the case of (2) State of Travancore
Cochin v.
Bombay Company Limited and State of West
Bengal v. Union of India.(3) It appears to us that according to the statement
of objects and reasons of the Ordinance and bearing in mind the preamble of the
Act, the main object was to make a specific provision for the selection of
teachers and officers in the universities which had not been done for a long
time.
Temporary appointments against vacant posts
had been made by the universities and such posts had been continuing in some
cases for ten years. The preamble to the Act of 1979 is a key to unfold the
intention of the legislature to make this law. It lays down that the Act was to
provide for the absorption of temporary lecturers of long standing working in
the universities of Rajasthan. The objects and reasons of the Ordinance of 1978
read as follows:- "An Ordinance to provide for the absorption of temporary
lecturers of long standing working in the Universities in Rajasthan.
In the Rajasthan Universities Teachers and
Officers (Special Conditions of Service) Act, 1974 (Rajasthan Act No. 18 of
1974) specific provisions have been made for the selection of teachers and
officers in the Universities. But for one reason or the other, regular
selection committees in the Universities should not meet to hold regular
selections before and after the commencement of the Act. Therefore, temporary
appointments against such vacant posts were made by the Universities. Such
appointments have been continuing in some cases for the last ten years with a
view to solve this long standing problem, (1) [1950] S.C.R. 88.
(2) [1952] S.C.R. 1112.
(3) [1964] 1 S.C.R. 371.
265 it was considered necessary to regularise
the appointments through specially constituted Screening Committees- Since, the
academic session was about to commence and since the Rajasthan Legislative
Assembly was not in session and the Governor was satisfied that circumstances
existed which rendered it necessary for him to take immediate action, he made
and promulgated the Rajasthan University Teachers (Absorption of Temporary
Lecturers) Ordinance, 1978 on 8th day of June, 1978." If the intention of
the legislature in fixing 25th June, 1975 in the impugned section of the Act
was to make differentiation on the basis of pre-emergency and post- emergency
temporary lecturers then there was no difficulty in agreeing with the view
taken by the learned single judge of the Rajasthan High Court and accepting the
submissions advanced on behalf of the appellants before us. However, as noted
before, the division Bench of the High Court could not spell out such an
intention from any of the provisions of the Ordinance as well as the Act. We
respectfully agree. The Court can only search for the objective intent of the
legislature primarily in the words used in the enactment aided by such
historical material as reports of the statutory committees, preamble etc. It
was laid down in the case of Stale of West Bengal v. Union of India (supra)
that a statute, as passed by the Parliament, is the expression of the
collective intention of the legislature as a whole. It may be borne in mind
that in this case there was no particular point of view in mind of the
University. We have noted the objects and reasons of the Ordinance.
The problem, for the solution of which this
Ordinance was passed and this Act was enacted, was to regularise the
appointments through specially constituted Screening Committees for temporary
teachers of long standing. There is a further fact which is important that
initially it was proposed to cover the cases of temporary lecturers appointed
on or before June, 1973 but representation was made by the temporary lecturers
that would deprive many subsequent appointees and therefore the benefit was
extended to those temporary teachers who were appointed on or before 25-6-
1975. It appears that the intention was that those who had continued from a
date prior to 1975 upto June 1978 should get the benefit. Such benefit had to
be fixed giving a particular period and from, the mere 266 fact that 25th June,
1975 was fixed which also happens to be the date on which emergency was clamped
on the country, it cannot be said that emergency was the nexus.A certain tenure
of service for the purpose of absorption was the object to be achieved and this
has a rational nexus with the object.
The prescription of the date from which the
period should begin and the date on which it should end were merely incidental
to the purpose. Any date perhaps could have served the purpose which took into
consideration long tenure. What was intended by the use of the expression
'appointed on or before 25-6-1975' and must have continued until 12-6-1978
being the date of coming into force of the Ordinance indicated that there
should have been near about three years experience for being eligible for absorption.
The date was a handy date. Handy in the sense
it came quickly in the minds of some people. At least there is no evidence that
there was any attempt to separate pre- emergency appointees and no decision was
taken by any appropriate authority and no such evidence is there to make a
distinction between pre-emergency and post-emergency appointees. Being in the
employment at the time of coming into operation of the Ordinance was the
pre-condition that is 12th June, 1978. Naturally, some day anterior to that
date had to be indicated to ensure long tenure of experience and 25th June,
1975 was chosen because it was as good a date as any other.
It may be borne in mind that wisdom or lack
of wisdom in the action of the Government or legislature is not justiciable by
court. See in this connection the observations of the U.S. Supreme Court in the
case of Metropolis Theater Company v. City of Chicago and Ernest J.
Magerstadt.1 To find fault with a law is not
to demonstrate its invalidity. There the learned judge Mr. Justice Mckenna
observed as follows:- "It may seem unjust and oppressive, yet be free from
judicial interference. The problems of government are practical ones and may
justify, if they do not require, rough recommendations, illogical, it may be, and
unscientific. But even such criticism should not be hastily expressed. What is
best is not always discernible, the wisdom of any choice may be disputed or
condemned. Mere errors of Government (1) 57 Lawyers' Edition 730.
267 are not subject to our judicial review.
It is only its palpably arbitrary exercises which can be declared
void...." This passage has been quoted with approval by Chief Justice
Chandrachud in Prag Ice & Oil Mills & We must bear in mind that mere
errors of Government are not subject to judicial review. What is best is not
always discernible. It may be that 25th June, 1975 has some odour to some
people. It may be that it revised many attitudes but this is wholly irrelevant.
Any other date might have been chosen.A particular period was taken to make a
person eligible for being screened for absorption and regularisation and if the
beginnings date happens to coincide with particular date about which some
people have some memories, the law would not become bad. It seems that would be
taking too sensitive a view of human expressions.
Great deal of reliance was placed on a five
judges' Bench decision of this Court in the case of D.S. Nakara and Others v.
Union of India.(1) There it was found that the Central Government servants on
retirement from service were entitled to receive pension under the Central
Civil Services (Pension Rules, 1972. Under the earlier pension scheme the
pension was related to the average emoluments during 36 months just preceding
retirement. On 25th May, 1979, the Government of India, Ministry of Finance
issued Office Memorandum whereby the formula for computation of pension was
liberalised but made it applicable to government servants who were in service
on or after that specified date. By another Memorandum of the Ministry of
Defence dated 28th September, 1979, the liberalised pension formula introduced
for the government servants governed by the 1972 Rules was extended to the
Armed Forces personnel subject to limitations set out in the memorandum with a
condition that the new rules of pension would be effective from 1st April, 1979
and might be applicable to all service officers who become/became non-effective
or on after that date. The liberalised scheme introduced a slab system for
computation of pension, raised pension ceiling and provided for average
emoluments with reference to last ten months' service.
Consequently, the pensioners who retired
prior to the specified date had to earn pension on the average emolu- (1)
[1978] 3 S.C.R. 293 at 333.
(2) [1983] 1 S C.C. 305=[1983] 2 S.C.R. 165.
268 ments of 36 months' salary just preceding
the date of retirement. Thus they suffered triple jeopardy viz. lower average
emoluments absence of slab system and lower ceiling, and being so aggrieved
they filed the writ petitions in this Court contending that the memoranda were
in violation of Article 14. Petitioners I and 2 were retired pensioners of the
Central Government who had retired prior to the specified date and petitioner 3
was a society registered under the Societies Registration Act, 186(), formed to
ventilate the legitimate public problems and consistent with its objective it
was espousing the cause of the petitioners all over the country.
This Court held that pension was neither a
bounty nor a matter of grace depending upon the sweet will of the employer, nor
an ex gratia payment. It was a payment for the past service rendered. The most
practical raison d'etre for pension is the enability to provide for one self
due to old age It created a vested right and was governed by the statutory
rules such as the Central Civil Services (Pension) Rules which were enacted in
exercise of power conferred by Articles 309 and 148(5) of the Constitution.
The expression 'pensioner' was generally
understood in contradistinction to the one in service. In that case Article 14
was wholly violated inasmuch as the pension rules being statutory in character,
the amended rules, since the specified date, accord differential and
discriminatory treatment to equals in the matter of commutation of pension.
Pensioners being all. equal, no date could be
chosen to separate one group getting more benefit than other. If a particular
benefit is to be given to all then making a classification between them is
discriminatory. Pension was the right of all retired persons.A particular date
was chosen by the Government and that date had no nexus with the purpose of the
Act i.e. give relief to them.
There are some cases where choice of date has
not been questioned. For instance Union of India & Anr. v. M/s.
Parameswaran Match Works Ltd, (1) wherein by
notification dated 21st July, 1967, benefit to a concessional rate of duty was
made available if a manufacturers of matches made a declaration that the total
clearance of matches from a factory would not exceed 75 million during a
financial year.
There the date chosen was 21st July, 1967. It
was contended before this Court by the Union of India that the (1) [1975] 2
S.C.R. 573, 269 concessional rate of duty was intended for small bona fide
units who were in the field when the notification dated 4th September, 1967 was
issued. The concessional rate of duty was not intended to benefit the large
units which had split up into smaller units to earn the concession. There this
Court observed at a page 579 as follows:- "The choice of a date as a basis
for classification cannot always be dubbed as arbitrary even if no particular
reason is forthcoming for the choice unless it is shown to be capricious or
whimsical in the circumstances. When it is seen that a line or a point there must
be and there is no mathematical or logical way of fixing it precisely, the
decision of the legislature or its delegate must be accepted unless we can say
that it is very wide of the reasonable mark." But as we have mentioned
hereinbefore; Nakara's case (supra) dealt with the problem of benefit to all
pensioners.
The choice of the date of 1st April, 1979 had
no nexus with the purpose and object of the Act. The facts in the instant case
are, however, different. For the regularisation of teachers, experience was the
object to be found out. Certain period of experience was necessary for the
basis for making the regularisation. The period of experience would be how much
and the date of experience should begin from what time are within the
legislative wisdom and there is nothing in this case to indicate that the
starting point i.e., to be in service on or before 25.6.1975 was an arbitrary
choice.
Reliance in this connection may also be
placed on the case of State of Mysore & Anr. v. S.V. Narayanappa.(1) For
the purpose Of the instant case it is not necessary to set out in detail all
the facts of that case. The facts of that decision have a ring of familiarity
with the facts of the present case. There also choosing a particular date did
not make the Act bad for the purpose of regularisation of the appointments in
the Mysore Government.
Various submissions and some other decisions
were placed before us in aid of rival submissions. In the view we have taken as
indicated hereinbefore, it is not necessary to refer to these.
(1) [1967] 1 S.C.R. 128.
270 For the reasons aforesaid, we are of the
opinion that the learned judges of the Division Bench of the Rajasthan High
Court were right. The appeals therefore fail and are dismissed. There will be
no order as to costs in the facts and circumstances of the case.
We are told that except two, all other
appellants have already been absorbed. It has also to be borne in mind that in
considering whether lecturers are eligible or not those who are functioning
since prior to 25.6.1975 until 12.6.1978, functional gaps as we have indicated
hereinbefore should be ignored and if possible some arrangements be made where
after appropriate screening or selection as the case may be, those who have
been functioning as temporary teachers for long period might be absorbed
including the appellants, subject to the rules of the University.
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