ivil 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 OJC No 4101971
MK Ramamurthi and B Parthasarathi for the appellants
Gobind Das NV Rama Das and G Narayana Rao for respondents 1 8 in CA 135775
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 Rs510 860 whereas the Government scale for Readers was Rs600 1000 
On the date of take over namely March 9 1971 each of the respondents was drawing a salary somewhere less than Rs600  three of them less by only Rs30 
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 promo as 9 3 1971 appoint tion date of ment take over 1Sri NNSwamy 8 3 34 21 7 58 1 12 68 Reader Rs570 2Sri NSatapathy 6 9 33 July 59 27 1 70 Reader Rs540 3Sri PHaridas 10 3 36 25 10 61 25 10 69 Lecturer Rs540 4
Sri JJ Rao 16 3 36 7 7 59 1 7 68 Reader Rs540 5
Sri KC Samantra 5 7 70 Lecturer All the posts are permanent 6
Sri GJ Chineswar Rao 30 9 31 3 9 57 1 10 67 Reader Rs570 7
Sri Ch
Chandra Sekhar Patro 
1 7 35 1 8 58 1 1 57 Reader Rs570 8
Sri Narayana Behera 1 10 37 2 8 62 13 9 70 Lecturer Rs510 9
Sri TKSatyan murty 14 9 27 1 7 49 4 5 59 Reader Rs660 10Sri VSR Gupta 28 12 30 1 7 52 4 9 69 Lecturer Rs600 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 Rs660 and Rs600 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 Rs600 
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 Rs600 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 PSC 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 OES Orissa Education Service for which they are found 777 suitable
It is hereby clarified that at the time of reference to the PSC 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 PSC for consideration against those posts
X X X X c While making reference to the PSC   cases of those ad hoc Readers who would have been normally entitled to pay of less than Rs600 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 Rs600 per month or more in the scale of pay Rs600 1000 against posts of Readers
Readers who on the date of take over were in receipt of pay of less than Rs600 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 Rs260 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 Rs600 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 OES
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 OES 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 TK Satyan murty No 9 and VSR 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 Rs660 on the date of taking over
VSR Gupta was promoted as Reader on 4 9 1969 and was drawing Rs600  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 NN Swamy No 1 N Satapathy No 2 JJ Rao No 4 GJ 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 Rs600 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
TK 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 Rs660 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 Rs30  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 161 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 vs Rangachari1
1  2 206SCI77 780 Our attention was drawn to a decision of tiffs Court in Smt
Juthika Bhattacharya vs The State of Madhya Pradesh and Others1 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  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
MR Appeals dismissed


Summary:
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 Rs600 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 Rs600 were not considered eligible for such recommendation
Their writ petition against the denial of equal opportunity under article 16 was accepted by the High Court
Dismissing the appeals by special leave the Court HELD The condition of drawing of Rs600 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 article 16 of the Constitution
719 C D F G The General Manager Southern Railway vs Rangachari   referred
Juthika Bhattacharya vs The State of Madhya Pradesh and Others  distinguished