PETITIONER:
STATE OF ORISSA & ANR.
Vs.
RESPONDENT:
N.N. SWAMY & ORS. ETC.
DATE OF JUDGMENT27/01/1977
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1237 1977 SCR (2) 774
1977 SCC (2) 508
ACT
Constitution of India, Article 16--Private college taken
over by State Government-Absorption of staff--Consideration
of eligibility for appointment Readers--Differentiation
between similarly situated Readers on ground of drawing
salary of Rs.600/- or more on date of take over, whether
amounts to denial equal opportunity for employment under
Art. 16.
HEADNOTE
The respondents were working as Readers in Khallikote
College, a private institution which was taken over by the
Orissa Government on March 9, 1971. A Government circular
containing conditions governing taking over the services of
the teaching staff of Khallikote College, was issued on
March 23, 1971, whereby the respondents were appointed as
lecturers in class II temporarily on ad hoc basis for a
period of six months. At the end of this period, the names
of those Readers who were drawing a salary of Rs.600/- or
more per month on the date of take-over, were recommended to
the Public Service Commission for the determination of’
their suitability for appointment as Readers. The respond-
ents and others who were drawing less than Rs.600/- were not
considered eligible for such recommendation. Their writ
petition against the denial of equal opportunity under Art.
16 was accepted by the High Court.
Dismissing the appeals by special leave the Court,
HELD:--The condition of drawing of Rs.600/- or more on
the date of taking over, which has been laid down in the
circular as a particular qualification for eligibility for
appointment as Reader and later for consideration of their
suitability by the Public Service Commission for appointment
as Reader, is arbitrary and discriminatory. It has no
nexus with the object underlying the qualification test in
an educational institution having regard to the most essen-
tial condition of intrinsic quality and efficiency of the
teachers, and results in denial of equal opportunity to the
respondents in the matter of employment under the Govern-
ment under Art. 16 of the Constitution. [719 C-D, F-G]
The General Manager Southern Railway v. Rangachari
[1962] 2 SCR 586, referred.
Smt. Juthika Bhattacharya v. The State of Madhya Pradesh
and Others [1976] SCC 96, distinguished.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1357-58
of 1975.
(Appeals by special leave from the judgment and order
dated 4-2-1974 of the Orissa High Court in O.J.C. No.
410/1971).
M.K. Ramamurthi and B. Parthasarathi, for the appellants.
Gobind Das, N.V. Rama Das and G. Narayana Rao, for
respondents 1-8 in CA 1357/75.
The Judgment of the Court was delivered by
GOSWAMI, J--These appeals by special leave are directed
against the judgment of the Orissa High Court of February 4,
1974.
There was a private college known by the name of
Khallikote College. This is an institution which grew out
of a school established
775
in 1856. The management had to meet with financial
crisis in the past and obtained financial help in the
shape of liberal endowment under a trust deed from the then
zamindar of Khallikote. The institution, it is stated,
became one of the premier colleges in the town of Behram-
pur, Ganjam District, Orissa. The College was at
first affiliated to the Andhra University at Waltair and
thereafter to the Utkal University, and since 1967 it has
been affiliated to the Behrampur University.
The Government of Orissa took over the management of the
College on and from March 9, 1971, and a formal agreement
was executed between the managing committee of the College
and the Governor of the State. The College was taken over
by the Government in pursuance of the unanimous resolution
of the managing committee of February 18, 1970, and the
transfer to the Government was of all the assets of the
College but without any liability. The managing committee
continued to be liable for the outstanding liabilities, if
any, of the College for which Government was not
liable. The College after the take over was administered
as a Government College.
The eight writ petitioners in the High Court (Respond-
ents herein) were working as Readers in different faculties
in the said College on the date of the aforesaid transfer in
the scale of pay Rs.510--860/- whereas the Government scale
for Readers was Rs.600-1000/-. On the date of take over,
namely, March 9, 1971, each of the respondents was drawing a
salary somewhere less than Rs.600/-; three of them less by
only Rs.30/-.
The material particulars of the ten Readers of the
College who were all earlier in private employment, includ-
ing the eight Respondents, are as follows (Annexure I,
Volume 1I of the Paper Book):
Sl. Name Date of Date of Date of Confirmed Pay as on
No. Birth 1st promoas 9-3-1971
appointtion (date of
ment take over)
1.Sri N.N.Swamy 8-3-34 21-7-58 1-12-68 Reader Rs.570
2.Sri N.Satapathy 6-9-33 July’59 27-1-70 Reader Rs.540
3.Sri P.Haridas 10-3-36 25-10-61 25-10-69 Lecturer Rs.540
4. Sri J.J. Rao 16-3-36 7-7-59 1-7-68 Reader Rs.540
5. Sri K.C. Samantra 5-7-70 Lecturer
All the posts are permanent
6. Sri G.J. Chineswar
Rao 30-9-31 3-9-57 1-10-67 Reader Rs.570
7. Sri Ch. Chandra
Sekhar Patro . . 1-7-35 1-8-58 1-1-57 Reader Rs.570
8. Sri Narayana
Behera 1-10-37 2-8-62 13-9-70 Lecturer Rs.510
9. Sri T.K.Satyan-
murty 14-9-27 1-7-49 4-5-59 Reader Rs.660
10.Sri V.S.R.
Gupta 28-12-30 1-7-52 4-9-69 Lecturer Rs.600
776
It will appear that five Respondents out of eight were
confirmed as Readers prior to the take over. Three Respond-
ents were confirmed as Lecturers but were promoted as Read-
ers prior to the transfer of the College. The last two
Readers in the list who. were lucky to draw salary of the
amount of Rs.660/- and Rs.600/- respectively as on the date
of take over, were treated differently by the Government
from the eight Respondents on the sole ground that they were
drawing as Reader salary of more than Rs.600/-. It is
rather poignant that the tenth Reader in the list was only
a confirmed Lecturer whereas, as already shown, five of the
Respondents were confirmed Readers although drawing salary
less than Rs.600/-
On July 30, 1970, the Government prescribed qualifica-
tions for appointment as a Reader by a Circular of that date
addressed to the Director of Public Instructions (Higher
Education) Orissa, which appears to supersede the earlier
circulars on the subject. It was stated in that circular
that the "Government have been pleased to order that follow-
ing principles shall hence forward be followed in the ap-
pointment Readers, namely,
(a) no officer who has not had at least 8
years of teaching experience as a Lecturer
would be eligible for consideration; and
(b) the post of Reader shall originally
be filled up by promotion subject to the
satisfactory performance and conduct of the
officer as a lecturer".
On March 23, 1971, the Government issued a circular con-
taining conditions governing taking over the services of the
teaching staff of the College. Paras 4 and 5 of that circu-
lar, which are material for our purpose, may be quoted:
"4. The State Government shall offer
ad hoc appointment to all staff inposition on
the date of take over subject to para 5, and
sub-para (d) of this paragraph for a period
not exceeding six months in each case, treat-
ing all such staff as fresh entrants to Gov-
ernment service. The final absorption of such
staff in Government service shall be subject
to the following conditions:
x x x x x
(b) That after termination of services of
surplus personnel, the cases of staff re-
tained in Class I and Class II shall be
referred to the Orissa Public Service Commis-
sion for determination of their suitability to
hold posts in Class I or II as the case may
be. The services of those who are not found
suitable by the P.S.C. (Public Service Commis-
sion) shall also, be terminated by giving one
month’s notice in each’ case. Those found
suitable by the Commission shall be finally
absorbed in respective Trade of the O.E.S.
(Orissa Education Service) for which they are
found
777
suitable. It is hereby clarified that at the
time of reference to the P.S.C. for determina-
tion of suitability for appointment as Read-
ers, cases of Lecturers of Government College,
eligible for appointment as Readers shall
also be simultaneously referred to the P.S.C.
for consideration against those posts.
X X X X
(c) While making reference to the
P.S.C ....... cases of those ad hoc Readers
who would have been normally, entitled to pay
of less than Rs.600/- per month on 9-3-71 by
application of the formula "minimum of the
scale of pay of Readers in force in the Col-
leges on the date of their appointment as such
by the Ex-Managing Committee plus one. incre-
ment in that scale for every completed year of
service upto 9-3-71" would be referred for
determination of their suitability for absorp-
tion as Lecturers only.
X X X X
5. Ad hoc appointment shall be issued to
all Professors and such of the Readers in
position, who on the date of take-over were
in receipt of pay of Rs.600/- per month or
more, in the scale of pay Rs.600--1000/-
against posts of Readers. Readers who on the
date of take over were in receipt of pay of
less than Rs.600/- per month and all lectur-
ers in position on that date shall be given
ad hoc appointment against the post of lectur-
ers in the scale of Rs.260--780/- with
effect from the date of take over".
X X X X
Basing on the aforesaid provisions of the above
circular the Director of Public Instructions sent on April
20, 1971, to each of the Respondents appointment letters
whereby they were appointed as Lecturers in Class II
temporarily on ad hoc basis for a period of six months with
effect from the forenoon of March 9, 1971, or till the
appointment is made in consultation with the Orissa Public
Service’ Commission, whichever is earlier; subject to
verification of character and antecedents and production of
medical fitness certificate. Appointments were, thus,
offered to. the Respondents under the terms and conditions
of take over which have been already extracted.
The grievance of the Respondents is that although they
had all the requisite qualifications for the appointment as
Reader and they were all holding the posts of Reader before
the take over and five of them were even confirmed Readers
but since under the aforesaid terms of the take over they
were drawing a salary of less than Rs.600/- on the date of
take over. their names were not referred to the Public
778
Service Commission for consideration of their’ suitability
for appointment as Readers in the Government College. It is
not disputed that they are otherwise educationally and by
experience qualified for the post of Reader. The High
Court found that the requirement of eight years of teaching
experience, as mentioned above, which is needed for appoint-
ment as a Reader is more than amply fulfilled by each of the
Respondents. The High Court accepted the Writ Petitions and
held that the Respondents were entitled to consideration
by the Public Service Commission for appointment as Read-
ers’ and hence these appeals by the State which are con-
fined only to the above question.
It is submitted by Mr. Ramamurthi on behalf of the
appellants that the High Court erred in directing the Gov-
ernment to take into account, as experience, the service
of the Respondents while they were in the private college
since, according to him, the necessary qualification is
eight years experience in Class II, Orissa Education Serv-
ice (O.E.S.). This submission is based on the Orissa Educa-
tion Service Class I (Recruitment to the College Branch)
Rules, 1971, issued on July 19, 1971, produced for the first
time in this Court. It is submitted that since the Respond-
ents have not completed eight years of service in the
O.E.S. Class II (Lecturer’s grade) in Government service,
they are not entitled to be considered by the Public Service
Commission for appointment as Readers. We are unable to
accept this submission based on these Rules. These Rules of
July 19, 1971, were not produced in the High Court and the
reason is obvious that these were not relied upon by the
State in connection with the appointment of the Respondents
as Readers after the College had been taken over by the
Government on March 9, 1971. The argument has, therefore,
to be supported on the intrinsic strength of the circular
of March 23, 1971.
Apart from this, there is a stronger reason not to.
entertain this submission at this stage. Even in the
Special Leave Petition filed by the State on July 15, 1974,
there was no mention whatsoever about the aforesaid Rules
and necessarily no ground was taken in the Petition on
the basis of these Rules. Being conscious of this position
Mr. Ramamurthi filed a Civil Miscellaneous Petition No..
4069 of 1976 before this Court on April 30, 1976, to urge
this additional ground. After hearing Mr. Ramamurthi we
rejected this prayer for urging the additional ground by
such a belated application when the High Court had no oppor-
tunity to consider the question.
The only question, therefore, which requires decision
in these appeals is _whether the Respondents were denied
equal opportunity under Article 16 of the Constitution in
the matter of appointment as Readers under the Government
in the manner laid down in the circular of March 23, 1971.
The following facts are admitted:
The Respondents and two others, namely, T.K. Satyan-
murty (No. 9) and V.S.R.. Gupta (No. 10) in the list (Annex-
ure I) were all Readers in the private College, each. having
put in more than eight
779
years of service there as a Lecturer. T. K. Satyanmurty was
promoted as Reader on 4-5-1969 and was drawing Rs.660/- on
the date of taking over. V.S.R. Gupta was promoted as
Reader on 4-9-1969 and was drawing Rs.600/-, the minimum
according to the aforesaid Government circular, on the date
of taking over. He was not even confirmed as a Reader but
was only confirmed as a Lecturer. Amongst the Respond-
ents, N.N. Swamy (No. 1), N. Satapathy (No. 2), J.J. Rao
(No. 4), G.J. Chineswar Rao (No. o) and Ch. Chandra Sekhar
Patro (No. 7) m the list (Annexure 1) were confirmed as
Readers and four of them were promoted even earlier than No.
9 and No. 10. It is thus clear that the condition of draw-
ing of Rs.600/- or more on the date of taking over, which
has been laid down in the said circular as a particular
qualification for eligibility for appointment as Reader and
later for consideration of their suitability by the Public
Service Commission for appointment as Reader, is arbitrary
and discriminatory. This condition has no nexus, whatev-
er, with the object underlying the qualification test in
an educational institution having regard to the most
essential condition of intrinsic quality and efficiency of
the teachers. It is not unknown that private institutions
generally have great handicaps in the matter of finance
and oftener the teaching staff in a private college has not
the same scales of pay and sometimes even has much lower
scales than that of the Government colleges. It is one
thing to lay down appropriate educational and intelligibly
relevant qualifications for certain posts in a college and
also teaching experience of a specified duration but com-
plete ignoration, without valid reason, of the teaching
experience of a lecturer in a private college, otherwise
qualified, on the sole ground of drawing a particular amount
of salary on a particular date cannot be countenanced. T.K.
Satyanmurty (No. 9) was promoted as a Reader while in the
private college much later than the four of the Respond-
ents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to;
draw Rs.660/- on the date of take over, while the Respond-
ents were drawing a little lower pay. The former was pre-
ferred and given the ad hoc appointment of a Reader and was
held as eligible for consideration by the Public Service
Commission for appointment as Reader and the claims of the
Respondents were ignored. Thus even amongst the Readers in
the private college, similarly situated, the only ground
for ignoring the claims of the said Respondents was drawing
of a lesser pay; even though it may be less by Rs.30/-, on
March 9, 1971. This ground for a most unreasonable differ-
entiation in picking and choosing from amongst the employees
similarly situated on an absolutely artificial and irrele-
vant consideration results in denial of equal opportunity to
the Respondents in the matter of employment under the
Government under Article 16 of the Constitution.
It is well-settled that under Article 16(1) of the Con-
stitution matters relating to employment not only mean the
initial appointment but also include all matters relating to
employment, whether prior or subsequent to the employment
and also include promotion, (See The General Manager, South-
ern Railway v. Rangachari(1).
(1) [1962] 2 SCR 586 2--206SCI/77
780
Our attention was drawn to a decision of tiffs Court
in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh
and Others(1) on behalf of the appellants, wherefrom it was
pointed out that Government could validly impose compara-
tively stringent qualifications for posts in schools taken
over from private management, since persons there may be
appointed without the requisite experience as needed in
Government schools. That case is entirely different from
the present case. There may be no difficulty in accepting
the position that Government can screen the teachers at the
time of fresh appointment in Government service after taking
over any institution from private management. The educa-
tional qualifications and teaching experience which may be
insisted upon may be appropriately stringent having regard
to the quality of education which Government intends to.
impart in the college after taking over the same from the
private management. If the quondam private employees in the
College did not fulfil the qualifications, experience and
other requisite conditions, they may not be eligible for
appointment since Government may not undertake to take over
all the employees by maintaining the billabong of a status
quo ante. Such a position, if taken by the Government, is
consistent with implementation of a correct educational
policy and will not incur the frown of Article 16 of the
Constitution. The question is entirely different when, as
in the present case, the Respondents answering the test of
educational qualifications, as well as, experience of teach-
ing in a recognised private college are discriminated
amongst the very category of Readers on an irrational and
illusory consideration. Denial of an opportunity to. these
Respondents even for being considered for the post of Reader
is clearly violative of Article 16 of the Constitution.
When a fairly well-recognised institution, as in this
case, run for more than a century, is completely taken over
by the Government for management, it is not merely taking
over the land and buildings, tables and chairs. It has to
tackle, at the same time, a human problem, that is to say,
the fate of the teachers and the staff serving that institu-
tion. The institution, with which we are concerned, was
taken over, by consent, as a going educational concern and
it goes without saying that it must be administered on
sound lines having regard ’to quality, efficiency and
progress in all respects. It is understandable that the
employees had to join the new service under the Government,
for the first time, and so could be, in that sense, fresh
entrants. But to say that the teaching experience of the
Readers in the private institution is completely effaced to
the extent that they will not be even eligible, on the plea
of absence of teaching experience in Government service, for
consideration for appointment as Readers is a seriously grim
issue. We feel assured that such an argument had not been
canvassed by the State in the High Court on the basis of the
Rules of July 19, 1971, since these Rules came into force
after the take over for which a separate circular had al-
ready been issued to take care of the special exigency.
Action under the Government circular of March 23, 1971,
alone, was in controversy in the High Court. The said
circular took recognition of the service in the private
college in the case of two
(1) [1976] 4 SCC 96.
781
Readers (Nos. 9 and 10 in Annexure 1). The only differentia
was, therefore, the salary drawn by the Readers on the date
of take over. That action based on the salary aspect under
the said circular had to. stand the test of Article 16 in
the High Court, as well as, before us. the argument in
favour of complete erasion of the past teaching expe-
rience in the private college, first time presented before
us, fails to take note of the distinction between eligibili-
ty and suitability. Eight years’ teaching experience in a
college and the fulfilment of other’ requisite qualifica-
tions make a person eligible for appointment .as a Reader,
but whether he is suitable for selection for the post is
an entirely different matter.
We are, therefore, clearly of opinion that all the Respond-
ents are eligible to be referred to. the Public Service
Commission for the post of Reader. Their names shall be
referred to the Commission, accordingly. Whether they will
be suitable for appointment us Readers will be a matter
entirely for due and proper consideration of the Public
Service Commission whose recommendations will be considered
by the Government in the matter of final absorption. The
High Court was right in allowing the .above claim in the
writ applications. The appeals fail and are dismissed with
costs.
M.R. Appeals dismissed.
782