State
of Punjab & Ors Vs. Dev Dutt Kaushal
[1995] INSC 433 (28
August 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Ray, G.N. (J) B.P. Jeevan Reddy. J.
CITATION:
1996 AIR 85 1995 SCC Supl. (4) 748 JT 1995 (6) 225 1995 SCALE (5)67
ACT:
HEAD NOTE:
Leave
granted in Special Leave Petitions.
A
common question arises in this batch of appeals. For the sake of convenience,
we may state the facts in Civil Appeal No. 1102 of 1995 (State of Punjab and Ors. v. Prof. Dev Dutt Kaushal,
Lecturer), the facts of which case alone were placed before us as
representative of the facts in other appeals.
The
respondent joined a private educational institution, M.R. College, Fazilka,
as a Lecturer on November
26, 1956. After one
year, his service were confirmed. His date of birth is October 29, 1931. According to the conditions of
service obtaining in the said private educational institution, the age of
retirement was fixed at sixty years which could be extended upto sixty five
years in certain situations. The said college was taken over by the state
Government on June 30,
1983 and since then is
being run as a government college. The respondent was continued in service
after such take over. On October
31, 1989, he was
retired from service on attaining the age of fifty eight years which is the age
of superannuation prescribed under the governmment rules. Since his service
under the government was less than ten years, he was not granted any pension.
He made a representation not only for pension but also for allowing him to continue
in service till he attains the age of sixty years. Since no action was taken on
his representation, he approached the Punjab and Haryana High Court by way of a
writ petition seeking appropriate directions to the government to allow him to
continue in service till he attains the age of sixty years and also to grant
him the pension taking into consideration the total length of service rendered
including the service under the private educational institution. The writ
petition was dismissed by a learned Single Judge in view of the terms and
conditions of the gift deed which was executed at the time of take over of the
said college by the government. The respondent preferred a Letters Patent
Appeal which has been allowed by a Division Bench purporting to follow the
decision of this Court in State of Orissa and Anr. V.N.N. Swamy and Ors. Etc. (1977 (2) S.C.R. 774). The
correctness of the said view is questioned in this batch of appeals.
According
to the service conditions obtaining in the aforesaid private college, the
teachers were not entitled to any pension on their retirement from service.
They were only entitled to the contributory provident fund.
It
would be appropriate to notice the terms and conditions of the gift deed
executed by the management of the aforesaid college in favour of the government
since it records the terms and conditions subject to which the government had
agreed to take over the college. The gift deed specifically records that the
management had applied to the government to take over the college and that the
government had agreed to do so on the terms and conditions recorded therein.
The conditions relevant to our purpose are Clauses 4,5,6,8,10 and 13. They are:
"4.
It is agreed that Govt. Shall not accept any liability or responsibility for
the period prior to the taking over of the college by it i.e. prior to 30-6-
83. All such liabilities shall be cleared by the Managing Committee of the
college.
5. It
is agreed that the college on being taken over by the Govt. should not be over
staffed and only such staff will be kept as is justified on the basis of actual
work load in accordance with the prescribed norms for different categories of
staff. Confirmed and regularly appointed staff through prescribed channels and
approved by the University/Department will be taken over on adhoc basis subject
to the approval of the Panjab Public Service Commission where applicable.
6. It
is agreed that such members of the staff of the college as fulfill necessary
qualifications and are considered suitable for absorption in Government Service
by the Punjab Public Service Commission/Sub-ordinate Service Selection
Board/Departmental Committee shall only be taken over in Government Service and
then treated as new entrants. But the Principal will be taken over only as Senior
most lecturer of the concerned college. The Government scales in respect of
respective categories shall be permissible to them and there shall be no
personal grade for any one. Their pay in the Government scale will be fixed on
basis of their length of Service in equivalent/identical or higher time- scale.
There shall be no guarantee in regard to protecting their existing pay and
allowances or any other ore- requisites.
8. It
is agreed that the members of the staff will be treated as fresh entrants and
they will be placed at the bottom of the Old Government employees in their
respective cadre including the Principal who will be absorbed as Senior most
lecturer interse of the concerned college.
10. It
is further agreed that for other administrative and financial matters not
specifically mentioned in the foregoing paragraphs the college shall be
governed by such rules, regulations/instructions and orders as are issued by
the Govt. from time to time and as may be applicable to other Government
college in the State.
13.
The college will be considered to have been taken over w.e.f. 30 June,
1983." A reading of the above clauses discloses the following features:
the government had stipulated and the management had agreed that the government
shall not accept any liability or responsibility for the period prior to taking
over of the college, i.e., June 30, 1983. All such liabilities, it was stated,
shall be cleared by the managing committee of the college. It was further
stipulated that on such take over, the government will absorb only such staff
as is justified on the basis of the actual work load in accordance with the
norms prescribed under the government.
It was
further stipulated that only confirmed and regularly appointed staff through
prescribed channel and approved by the University/Department alone will be
taken over and that too on adhoc basis. This appointment under the government
was to be subject to the approval of Punjab Public Service Commission wherever
applicable. It was further stated in express words that on such appointment
under the government, the teachers shall be treated as "new
entrants". The principal was to be appointed only as the senior-most
lecturer of the concerned college and not as the principal.
It was
also specified that on such appointment the teachers so absorbed and treated as
fresh entrants will be placed at the bottom of the existing government
employees in the relevant cadre. It was specified that there shall be no
guarantee in regard to protecting their existing pay or any other perquisites
and that they will be fitted in the government pay scales admissible to the
respective categories. At the same time, an exception was made in the case of
fitment in the scale, viz., their pay in the government scale will be fixed on
the basis of their length of service in equivalent/identical or higher
time-scale.
The
gift deed made it clear that for other administrative and financial matters not
specifically mentioned in the said deed, the college shall be governed by such
rules, regulations, instructions and orders as are issued by the government
from time to time and as may be applicable to other government colleges in the
State. The date of take over was specified as June 30, 1983. It is in the light of these terms and conditions that the
respondent's claims in the writ petition have to be examined because it is on
these terms and conditions that the staff of the said private college was taken
over by the government and they became government employees.
The
first claim of the respondent is that he is entitled to continue in service
till he attains the age of sixty years. It is not possible to agree. It is
admitted on all hands that the age of retirement of the college lecturers under
the government is fifty eight years. In view of the terms and conditions of the
gift deed mentioned above, it is plain that the respondent's plea cannot be
accepted. There is no clause or condition in the gift deed preserving or saving
the age of retirement prescribed in the said private college. Actually on the
take over of the college, the teachers/lecturers had no right as such to be
absorbed or to be appointed under the government. Their appointment in
government service was subject to fulfillment of certain conditions specified
above. The gift deed repeatedly states that on such appointment, they shall be
treated as "new entrants" and shall be placed at the bottom of the
seniority list, as on the date of the absorption, in the relevant
grade/category. The gift deed further stated that in matters not specifically
provided for therein, the government's rules, regulations and orders will
apply. In such a situation, it is obvious that the claim for continuance till
the attainment of sixty years is simply not acceptable.
Now
coming to the claim for pension, it may be noted that according to the
government rules, no lecturer is entitled to pension unless he puts in ten
years service.
There
is no dispute about this position. There is equally no dispute that respondent
had not served for ten years under the government. The contention of the
respondent, however, is that the service rendered by him in the college while
it was under the private management should also be counted and his pension
fixed on that basis. We are again unable to appreciate this contention. As
stated above, the respondent was not entitled to any pension according to the
service conditions obtaining in the private college. Had the college not been
taken over by the government and had he retired in the normal course, he would
not have been entitled to any pension. He was entitled only to contributory
provident fund. It is only under government service that pension is provided
for. But such pension is available only if an employee puts in ten years of
service under the government.
Now
the gift deed does not say that for the purpose of pension, the service
rendered in the college while it was under the private management shall also be
counted. On the contrary, it says that the government shall not be responsible
and shall not accept any liability for the period prior to the taking over of
the college and that all such liabilities shall be cleared by the managing
committee of the college - which means that on the date of taking over of the
college, the respondent was entitled to be paid the contributory provident fund
by the then management of the college. Indeed, it is stated by the learned
counsel for the State that it was so paid to and received by the respondent.
The
correctness of the said statement has, however, not been put in issue and,
therefore, we do not express any opinion on the correctness of the said
statement of fact. All that we need say is that the respondent was entitled to
receive the contributory provident fund according to the relevant rules on the
date of take over of the said college from the private management. If he has
not been so paid, his remedy lies against the managing committee of the college
in office prior to the date of taking over. It may also be noticed that the
gift deed expressly specifies the only exception to the rule of "new
entrants" it recognised viz., for the purpose of fitment in the
appropriate scale of pay, their service in the said grade under the private
management shall be taken into account. No other exception is provided for or recognised
by the gift deed. Accepting the respondent's plea in this behalf would amount
to reading yet another exception into the said gift deed, viz., for the purpose
of pension also the service under the private management shall be counted. This
we cannot do for more than one reason.
Wherever
it wanted to so provide, the gift deed itself specified the exception to the
rule of "new entrants";
hence,
no other exception can be read into it. Secondly, the gift deed provides
expressly that in matters not expressly provided for in the gift deed, the
rules, regulations, instructions and orders issued by the government from time
to time shall apply. In this view of the matter, the second claim of the
respondent is also liable to be rejected and this is what the learned Single
Judge of the High Court had opined. The Division Bench, however, reversed him
purporting to follow the decision of this Court in N.N. Swamy. It is,
therefore, necessary to carefully examine the facts and the principle of the
said decision to ascertain whether the principal or ratio of the said decision
has any relevance herein.
The
facts of N.N. Swamy are the following: a private college known as "khallikote College" was taken over by the government on and with effect
from March 9, 1971. A formal agreement was executed
between the managing committee of the college and the Governor of the State
recording the terms and conditions of transfer. They provided that the transfer
of the college 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 the government was
not liable. The six writ petitioners, (who were respondents before this Court)
were all Readers in different faculties in the said college on the date of
taking over.
They
were in the pay scale of Rs.510-860/- and were actually drawing pay less than
Rs.600- per month on the date of take over. Two other, who were juniors (indeed
one of them was only a lecturer and not even a Reader) were in the pay scale of
Rs.600-1000/- and were drawing the pay of Rs.600/- or above on the date of take
over. On March 23, 1971, the government issued a circular
containing conditions governing the taking over of the services of the teaching
staff of the said college. Para 5 of the said circular provided that "adhoc
appointments shall be issued to all Professors and such of the Readers in
position, who on the date of takeover 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 takeover were in receipt of pay of less than Rs.600/- per
month and all lecturers in position on that date shall be given adhoc
appointment against the post of lecturers in the scale of Rs.260-780/- with
effect from the date of take over. "Pursuant to the said Para 5,
appointment as Readers was denied to the said six petitioners on the ground
that they were drawing pay of less than Rs.600/- per month on the date of take
over. Since the adhoc appointment was not given to them as Readers on the said
ground, their cases were also not referred to the Public Service Commission for
regular appointment as Readers. The said six lecturers complained against the
same by way of a writ petition in the Orissa High Court. Their claim was
examined by the High Court, as also by this Court, only with reference to the cirular
dated March 23, 1971. This Court opined that the
aforesaid Para 5 of the circular was arbitrary and
void being violative of Article 14 of the Constitution. It was pointed out that
the stipulation that Reader must be drawing pay of not less than Rs.600/- per
month on the date of take over has no nexus with the object underlying the
prescription of qualifications. It was pointed out that the pay scales in
private institutions are generally lower than similar government institutions
and that disqualifying a Reader from appointment to the said category under the
government only on the aforesaid ground was discriminatory. It was pointed out
that another Reader who was junior to all the said six writ petitioners was
appointed as Reader only because he was drawing a salary of Rs.660/- per month
on the date of take over.
Another
aspect dealt with in N.N. Swamy related to the computation of the period of
qualifying service, which contention appears to have been raised for the first
time before this Court. The submission was this: on July 30, 1970,i.e., prior to the taking over of the said college by the
government, the government had prescribed qualifications for appointment as a
Reader. One of the qualifications prescribed was "atleast eight years of
teaching experience as a lecturer"; the service of the said writ
petitioners in the category of lecturers rendered under the private management
cannot be taken into account and, therefore, they cannot be promoted as Readers
since they have not put in eight years service as lecturers under the
government. With respect to this submission, the Court question, this Court
(Bench comprising Goswami and Shinghal, JJ. ) made the following observations:
"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 qrim 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 take over for which a separate circular had
already been issued to take care of the special exiqency. Action under the
Government circular of March
23, 1971, alone, was
in controversy in the High Court. The said circular took in recognition of the
service in the private college in the case of two Readers (Nos. 9 and 10 in
Annexure I).
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 erasion 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.
(Emphasis
added) It is evident from the above except that the contention relating to
eight years' service as a prerequisite was urged for the first time before this
Court and had not been urged before the High Court. This Court, therefore,
observed that the circular of March 23, 1971 provided for appointment of only
two Readers (juniors to the said six writ petitioners) only because they were
in receipt of pay of Rs.600/- or above and disqualified the said writ
petitioners on the ground of drawing pay less than Rs.600/- and that once the
said ground of distinction is struck down as violative of Article 16, the plea
of lack of teaching experience, argued for the first time before this Court,
should fail. It cannot, therefore, be said that this Court has ruled that the
service rendered under the private management should be taken into
consideration. All that it said is that denial of such service is "a
seriously grim issue". But since there was no occasion for pronouncing
upon the said contention, no final opinion was expressed. The said decision,
therefore, does not support the case of the respondents herein.
Another
case relied upon by the learned counsel for the respondents before us is the
decision of this Court in Chander Sain v. State of Haryana & Ors. (1994 (1)
S.C.C.750). Having regard to Para 10 of the conditions subject to which the
private institution was taken over and particularly in the light of Para 3 of
another memo dated March 28, 1979, this Court held that the government was
bound to take into account the service rendered by the teachers under the
private management for the purpose of calculating the gratuity payable.
According to the orders in force prior to the taking over of the said
institution, the teachers in private colleges were entitled to same gratuity as
was payable to similar teachers in government service.
Actually,
the government was contributing seventy five percent of the total deficit of
the private colleges relating to salary, gratuity, etc. for the posts approved
by the government. The stand of the state of Haryana in that case was that
teachers who had retired before the take over alone were entitled to gratuity
calculated on the basis of the service rendered by them under the private
management and not those who are absorbed in government service and retired
thereafter. Such a plea was held to be unacceptable.
Since
the said decision turned on the particular facts and the language of the
circulars concerned in that case, it is not necessary to set out the facts of
the said decision.
For
the above reasons, these appeals are liable to be allowed and are accordingly
allowed herewith. The judgment of the Division Bench is set aside and the
judgment of the learned Single Judge is restored. There shall be no order as to
costs.
Before
parting with this case, we must refer to a circumstance brought to our notice.
It is stated that in the year 1992, the Government of Punjab has framed a
scheme under Rule 22-A of the Punjab privately Managed Recognised Schools
Employees (Security of Service) Rules, 1981 under which scheme, it is stated by
the learned counsel for the respondents, the teachers in the private Schools
taken over by the government are entitled to count their service under the
private management for the purpose of pension. We do not express any opinion on
the said contention. It is enough to observe that if any of the respondents in
these appeals is entitled to any benefit under the said scheme, he is entitled
to claim the same according to law. It may also be in these appeals only, Civil
Appeal No. 1104 of 1995 pertains to a teacher in a school while in all other
appeals pertain to lecturers in colleges. The learned counsel asked us to
clarify further that if in future the Government of Punjab frames a scheme with
respect to lecturers similar to the aforementioned scheme, this judgment should
not stand in the way. In our opinion, the said apprehension is wholly
unfounded. This judgment does not preclude the government from conferring such
benefits as they may think appropriate on the respondents and other similarly
placed persons nor does this decision stand in the way of such persons claiming
the appropriate reliefs under such scheme, as and when framed.
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