of Punjab & Ors Vs. Tara Singh Shahi
 INSC 563 (17
Saghir S. (J) Ahmad Saghir S. (J) Jeevan Reddy, B.P. (J) S. Saghir Ahmad,.J.
JT 1996 (6) 26 1996 SCALE (3)716
Guru Nanak College at Gurdaspur was a private
institution affiliated to Guru Nanak Dev University.
was appointed as Principal of the college by a resolution of the Managing
Committee adopted on 27th of May 1975. His appointment was approved by the Vice
Chancellor on 30th of June, 1975 and thereafter he was confirmed on that post
with effect from 31st of May. 1976.
Guru Nanak college, as also three other colleges were proposed to be taken over
by the Government under its Memo dated 30th of September. 1987 on the condition
that only those staff member who possessed thee requisite qualification would
along be absorbed and that too as "new entrants" while the Principal
of the college would be brought in as senior-most lecturer and not as
Memorandum was considered by the Managing Committee of the college in its
meeting held on 18th of May, 1983 and was approved. Consequently, a gift deed
dated IIth of July,1983 was executed between the management of the college and
the State Government in which the management was described as donors and it was
provided, inter alia. as under:
In pursuance of the said agreement, the donors hereby transfer to the Govt., by
way of gift all the properties in the form of buildings, fields, gardens, staff
quarters, lands, equipments, furniture, library books, science apparatus and
other assets etc. at present attached with the college or standing in the name
of the college as are specified in Schedule A including the right of college
management and control of the Guru Nanak College Gurdaspur District, Gurdaspur
to have and to hold the same to the Government absolutely for ever.
is agreed that Government shall not accept any liability or responsibility for
the period prior to the taking over of the college by them. All such
liabilities shall be cleared by the Managing Committee of the college
is agreed that the college on being taken over by the Government should not be
over- staffed and only such staff will be kept as is justified on the basis of
actual workload in accordance with the prescribed norms for different. categories
and regularly appointed staff through prescribed channels and approved by the
University/department will be taken on ad hoc basis subject to the approved of
the Punjab Public Service Commission where applicable.
is agreed that such members of the Staff of the college as fulfil necessary
qualifications and are considered suitable for absorption in Government service
by the P.P.S.C. Sub-Board/Departmental Committee shall only be taken over in
Government service and then treated as new contracts. But the Principal will be
taken over only as senior most lecturer of the concerned college. The
Government scale 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 the basis of their length of service in
equivalent/identical or higher time scale. There shall be no guarantee in
regard to protecting their exist ing pay and allowances or any other per
is further agreed that the staff, subject to their suitability may be
regularized but shall, however, be subject to the condition laid down in clause
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 intense of the concerned college."
pursuance of the aforesaid. gift deed, the staff members of the college were
absorbed in Government service and the respondent who, prior to the taking over
of the college by the Government was working as Principal, was brought in as
respondent wanted to be absorbed as Principal of the college and since it was
not done, he represented to the Government and when no action was taken on his
representation. he filed the writ petition in the Punjab & Haryana High Court
which was allowed by the Single Judge on 6th of August, 1992 with a direction
to the appellants to absorb him as principal of the college. It is this
judgment which was upheld by the Division Bench of the High Court and is now
being questioned here in this Court.
Learned counsel appearing for the State of Punjab has contended that the claim of the respondent for absorption as
Principal of the college was wholly out of place and the High Court was in
error in issuing a direction for the respondent absorption as Principal of the
college. It is pointed out that the respondent, in his capacity as Principal of
Guru Nanak College. was already a member of the Managing Committee and in the
crucial meeting of that Committee. held on 18.5.83, in which the taking over of
the college was approved on the terms set out in the gift deed, he was present
and therefore, cannot claim the post of principal of the college as it was
specifically provided in the gift deed that the principal would be brought in
only as a senior-most lecturer and not as principal.
respondent admittedly was the Principal of the private institution which was
taken over by the Government under a gift deed dated 11th of July, 1983 in
which the terms and conditions on which the members of the staff would he
absorbed were set out. A perusal of these conditions which have already been
reproduced above, would indicate that while the Government was not bound to
absorb each individual member of the staff unless he possessed the requisite
qualifications, the erstwhile Principal was to be absorbed as senior-most
lecturer and not as principal. Since members of the staff were absorbed in
terms of the gift Deed, as new entrants. they were placed at the bottom of the
seniority in the related cadre.
respondent took over as senior-most lecturer in the college with effect from
11th of July, 1983 and has been working as such. He, however, filed the writ
petition in the High Court on 11.1.88 invoking the writ jurisdiction of the
Court after about four and a half years. His petition was thus liable to be
rejected on the ground of delay and laches.
What is the binding effect of the gift deed and to what extent it would
regulate the conditioner service of the members of the staff was considered by
this Court in State SSC 784=JT 1995 (6) SC 225 by a Bench of which one of us (Hon'ble
B.P.Jeeven Reddy, J.) was a Member. The Petitioner in that case had claimed the
benefit of retirement at the age of 60 years instead of 58 years on the basis
of his being a lecturer in a private institution which was subsequently taken
over by the Government under gift deed containing terms and conditions similar
and identical to those contained in the gift deed in the Instant case. lt was
held by this Court that in view of the terms and conditions of the gift deed,
it was not possible to accede to the request of the petitioner for being
superannuated at the age of 60 years as it was specifically provided in the
gift deed that in respect of matters which were not specifically provided for
by the gift deed, the Government Rules would apply under which the age of
retirement was 58 years.
the claim of the petitioner was rejected.
gift deed of that case is identical in its tenor and contents to the gift deed
in the instant case and, therefore the question as to the binding nature of the
gift deed on the Management and Members of the staff is concluded by the
Recruitment to and conditions of service of the post of principal and other
Class-I posts in the government colleges were regulated by Rules known as
Punjab Educational Service (College Cadre) (Class-I) Rules, 1976 made under
Article 309 of the Constitution.
provides as under:
(i) No person shall be appointed to a post in the Service by direct recruitment
unless he possesses the educational qualifications.
training, and other qualifications as specified in appendix "B" .
person appointed to a post in the service by direct recruitment shall possess
knowledge of Punjabi of Matriculation or its equivalent standard which he shall
have to acquire the requisite knowledge within a period of six months of his
appointment after which he shall be required to pass a test of the aforesaid
standard as may be specified by the State Government, otherwise his services
shall be liable to termination.
Method of recruitment. indicated in Rule 10. is quoted below:
(1) Appointment to the posts in the Service shall be made in the manner
indicated below:- (i) In the case of Director of Public Instruction (Colleges)
by selection from amongst the members of the Service;
In the case of other posts in the Service- (a) 50 per cent of the posts by
promotion from amongst the member of Punjab Educational (College Cadre) Service
(Class- II) or by transfer or deputation from other- State Governments,
Government of India or the universities having such experience, Government of
India or universities having such experience as is specified in appendix
per cent of the posts by direct recruitment." (2) All appointments to the
posts by promotion shall be made on the basis of seniority-cum-merit and no
person shall have any right for promotion merely on the basis of seniority.
Whenever a vacancy occurs or is about to occur, the Government shall determine
the manner in which it shall be filled.
Qualifications prescribed for appointment to the post of Principal were
indicated in Appendix "B" which is quoted below:
"B" [Rule 9 (i)] "Qualifications and experience for appointment
to the Service (i) by direct recruitment, (ii) by promotion (i) By Direct
M.A. First 'Division or High Second Division (50 % ) in relevant subject or an
equivalent degree of a foreign University with 8 years' teaching experience.
Ph.D. with .8 years' teaching experience.
of working as a Lecturer for a minimum period of eight years."
Notification dated 27.11.81. the Governor of Punjab relaxed the Rules in the
case of service lecturers in Punjab Government Colleges as under:
) The upper age limit of 45 years prescribed under rule 8 of the Rules ibid, be
relaxed to the extent of 52 years of age.
Qualifications for appointment to the service by direct recruitment under rule
9(i) Appendix 'B' of the rules ibid has been prescribed M.A. First division or
High Second Division (55%) in the relevant subject or an equivalent degree of a
recognized University be relaxed to the extent that the educational
qualifications for these personnel should be the same which were prescribed at
the time of their selection as lecturers."
This Notification was issued in exercise of powers Conferred under Rule 19 of
the Punjab Educational Service (College Cadre) (Class-I) Rules,1976.
is pointed out that since respondent was M.A. Second Division with 52% marks,
he was not qualified to be appointed to the post of Principal as the
qualification required for appointment on that post was "M.A. First
Division" or "High Second Division(55%)". It is thus apparent
that respondent not being qualified for appointment to the post of Principal
could not legally claim such appointment nor was it possible for the High Court
to have issued a Mandamus that the respondent be appointment or absorbed on
that post. Articles 14 & 16 which contain the Rule of Equality do not
envisage that a person who is not qualified for appointment can still claim
such appointment merely on the basis of Fundamental Rights available under
Article 14 and 16. He cannot, in fact. invoke the provisions of those Articles
as he has first to possess the essential qualification before invoking the Rule
of Equality. The finding of the Single Judge of the High Court that the
respondent possessed the requisite qualification is, therefore. erroneous. The
Division Bench also was in error in confirming the findings though it had not
expressly adverted itself to this question.
Contention of the learned counsel for the respondent that in view of the
Circular dated 6th of February, 1981 issued by the Guru Nanak Dev University Amritsar
in which the qualification for appointment to the post of Principal in the
University were laid down, the respondent shall be deemed to possess the
requisite qualification, cannot be accepted as the government took over the
college in 1983 and had already prescribed the qualifications for posts of
lecturers and Principal in the Government College by Rules made under Article
309 of the Constitution. Appointments and promotions with the provisions
contained in these Rules and not in any other manner.
view of the above, we allow this appeal. The judgment and order dated 6.8.92
passed by the Single Judge and upheld by the Division Bench of the Punjab &
Haryana High Court on 25.1.95 is hereby set aside and the writ petition of
respondent is dismissed but without any order as to costs.
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