C.W.P. No.4946 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4946 of 1989 Date of Decision.28.09.2011 Dev Raj Kashyap and others .....Petitioners Versus The State of Punjab through the Secretary to Government, Punjab, Department of Education, Chandigarh and others .....Respondents Present: Mr. Dheeraj Jain, Advocate for Mr. Satya Pal Jain, Senior Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 to 3. None for respondent No.4. 2. C.W.P. No.8417 of 1990 Acharya Durga Dutt and another .....Petitioners Versus The State of Punjab through the Secretary Education, Punjab, Chandigarh and others .....Respondents Present: Mr. Manjit Singh Khaira, Senior Advocate with Mr. Dharminder Singh Randhawa, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 2. None for respondent No.3. 3. C.W.P. No.8765 of 1991 Acharya Lekh Ram Dixit and others .....Petitioners Versus The State of Punjab through its Chief Secretary, Government of Punjab, Civil Secretariat, Chandigarh and others .....Respondents C.W.P. No.4946 of 1989 -2- Present: Mr. Smarth Sagar, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 3. None for respondent No.4. 4. C.W.P. No.5470 of 1991 The Punjab Teacher Union through its Secretary Smt. Narinder Kaur and another .....Petitioners Versus State of Punjab through the Secretary to Government of Punjab, Civil Secretariat, Chandigarh and others .....Respondents Present: None for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 3. None for respondent Nos.4 to 7. 5. C.W.P. No.5023 of 1992 Acharya Hari Datt Sharma and others .....Petitioners Versus The State of Punjab through its Chief Secretary, Government of Punjab, Civil Secretariat, Chandigarh and others .....Respondents Present: Mr. Smarth Sagar, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 3. 6. C.W.P. No.9431 of 1992 Acharya Hari Datt Sharma and others .....Petitioners Versus The State of Punjab through its Chief Secretary, Government of Punjab, Civil Secretariat, Chandigarh and others .....Respondents C.W.P. No.4946 of 1989 -3- Present: Mr. Vivek Sharma, Advocate for Mr. D.S. Patwalia, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 3. 7. C.W.P. No.13763 of 1992 Subhash Chander son of Shri Ram Kishan, College Teacher in the Department of Sanskrit in Government Sanskrit Mahavidyalya, Patiala, District Patiala (Punjab). .....Petitioner Versus State of Punjab through its Chief Secretary, Government of Punjab, Civil Secretariat, Chandigarh and others .....Respondents Present: Mr. Smarth Sagar, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 3. 8. C.W.P. No.3365 of 1999 Giani Hazara Singh son of S. Narain Singh and another .....Petitioners Versus The State of Punjab through Principal Secretary, Higher Education, Punjab, Chandigarh and others .....Respondents Present: Mr. Manjit Singh Khaira, Senior Advocate with Mr. Dharminder Singh Randhawa, Advocate for the petitioners. Ms. Kavita Arora, Addl. A.G., Punjab for respondent Nos.1 and 5. None for respondent No.6. Mr. Manu K. Bhandari, Advocate for respondent No.7. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes C.W.P. No.4946 of 1989 -4- 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. 1. All the above writ petitions have been directed to be clubbed together for disposal. They are at instance of teachers at two of the 'Sanskrit institutes' at Patiala and Nabha. The cases could be brought under two heads broadly: one, the cases in the nature of public interest that were filed by the affected teachers themselves that the Sanskrit Mahavidyalya, Patiala and Sanskrit Institute at Nabha shall not be brought down to the level of school since they conduct courses at par with colleges beyond the level of matriculation and that the institutes shall be run with teachers of college cadre; two, claims at the instance of the teachers, who would contend that they are entitled to the scales of pay commensurate with the Lecturers and Professors of colleges since the syllabi for the courses are approved by the Punjabi University at Patiala and the qualifications for teachers are as prescribed by the University. 2. The common ground for all the teachers, who have filed various writ petitions is that in a suit filed by one Acharya Lekh Ram Dixit against State of Punjab when he was sought to be transferred from the Sanskrit Mahavidyalaya, Patiala to a school, he sought for a restraint on the ground that the institute was equivalent to a college and any such transfer would not be permissible. The Court accepted the contention and decreed the suit and also held that he would be entitled to the scale of pay of a Lecturer in colleges. This was the central plank on which several of the teachers working in these two institutes would claim as applicable to them also. C.W.P. No.4946 of 1989 -5- 3. The disputes have been pending for fairly well over two decades and in such a long span of time, various interim orders have been passed. There have been orders of stay granted against transfers of teachers from school cadre to these institutes and at the same time permitting transfers to be made to or from colleges. The Government itself has upgraded these institutes and brought it under a single umbrella of Institute of Oriental Languages under the control of the Director, Public Instructions (Colleges). The Government has filed an affidavit in one of the cases seeking for vacation of stay against transfers to enable the State to repatriate teachers brought from school cadre to the respective schools so that process of transfers from colleges could be undertaken on a permanent basis. 3. Learned Senior Counsel appearing for the petitioner, Sh. Manjit Singh Khaira would take me through history to stress upon importance of these institutes in this region. The Sanskrit Mahavidyalaya Patiala is reported to have come into existence in the Patiala State for imparting education in the classical language of Sanskrit in the year 1860. Later English and Mathematics languages had been introduced in the year 1862 and in 1870, the Maharaja of Patiala created an Education Department and the institute was affiliated to the Calcutta University in the year 1874. The Viceroy of India Lord North Brooke laid the foundation stone of Mahindra College Patiala and Lord Rippon inaugurated the college building in the year 1884. The courses offered at the Mahavidyalaya were Shastri, Vishara, Prajana all in Sanskrit and Gyani, Vidwan and Budhiman all in Punjabi. The classes in Sanskrit and Punjabi were separated from the college and moved to the separate C.W.P. No.4946 of 1989 -6- institutions in the name of Sanskrit Vidyalaya and Gurmukhi Vidyalaya, Patiala in 1912. These two Vidyalayas were amalgamated in 1963 and a new institution namely the Government Institute of Classical and Modern Indian Language, Patiala was established. The Punjabi University at Patiala laid down the qualification of teaching staff of the affiliated institution for OT and MIL examination. For the Sanskrit teaching staff, the qualification was BA+Shastri+Prabhakar for teaching Prajana and Visharad and for still higher course of Shastri, MA Sanskrit+Shastri+Acharya were needed. 4. The institution at Patiala had been originally affiliated to Panjab University, Chandigarh but w.e.f. 13.06.1969, it was affiliated to the Punjabi University, Patiala. The University's letter to the institute clearly showed that it was treated as a college and came within the purview of the University. It was again the University that laid down qualification, pay scale and qualification of the teaching staff for the Mahavidyalaya at Patiala. The Senate of the University had made the recommendation with reference to qualifications and pay scales on 25.12.1970 and the State of Punjab itself approved the Mahavidyalaya as a college on 22.6.1972. 5. The stand-off between the teaching staff and the State really started only when the State of Punjab tried to bring the institute to the level of school when Sh. Lekh Ram filed a civil suit stating that he was a teacher in a college cadre and could not be transferred to school. The suit had been decreed by the Special Judge, Patiala and the order of transfer to a school dated 17.06.1983 was declared as illegal. The case was contested by the State upto the Hon'ble Supreme Court and at all C.W.P. No.4946 of 1989 -7- levels, the trial Court decree was affirmed. The High Court judgment under the title State of Punjab Vs. Lekh Ram was reported in 1990 (1) RSJ 267. The plaintiff in that suit had also applied for release of arrears on the basis that he was entitled to scales of Lecturer in a college and the DPI (Colleges) had also released the arrears on 25.09.1989. 6. The petitioners would rely on other factors as well to say that the institute was always treated as a college. The University calendar prescribed that for appearing in Shastri Part-I examination, the candidate should have passed Visharad or MA Sanskrit that showed that Visharad was equivalent to MA Sanskrit and Shastri was being treated as superior to MA, Sanskrit. Any college teacher or University teacher working elsewhere could not have also taught at the Mahavidyalaya because the medium of instruction for Shastri and Visharad was only Sanskrit. The circle became complete when the Government of Punjab took note of the two leading institutes at Patiala and Nabha to be merged on 04.03.1975 and brought under a newly established Institute of Oriental Languages. Since the prayers in all the writ petitions are not the same and there are variations, it would be necessary to set out the cases in brief in each writ petition within two broad categories that we have outlined above. C.W.P. Nos.8417 of 1990, 8765 of 1991, 5470 of 1991, 5023 of 1992 & 3365 of 1999 7. All these case were at the instance of teachers seeking for retention of the institutes as college and not to downgrade them as schools. They were filed at various stages when there had been action by the State that caused serious apprehension that there was an attempt of the State to reduce the status of these institutes. All these C.W.P. No.4946 of 1989 -8- cases had anchored their claims to the civil court decree that stood affirmed upto the Hon'ble Supreme Court filed at the instance of Sh. Lekh Ram. In C.W.P. No.8417 of 1990, the case had been filed at the instance of certain teachers in the Mahavidyalaya at Patiala at a time when one Sneh Lata, Senior Mistress at the Government High School was sought to be transferred to the Mahavidyalaya. She was herself made as a party-respondent along with State of Punjab through Secretary, Education and the Director Public Instructions (Colleges). The prayer in the writ petition was to direct the respondents not to change in any manner the status of the institute of Oriental and Modern Indian Languages at Patiala, being an immediate response to the attempt of the respondents to transfer the 3rd respondent-Sneh Lata from school. When the writ petition was admitted on 08.01.1991, the Division Bench of this Court not merely stayed transfer but also held that there should be no inter se transfers of teachers of institutes with the school teachers. However, the Bench observed that it would be open to the State to make an inter-se transfer of the teachers of institute with teachers of the college cadre. The State had filed a written statement contending that the petitioner had needless apprehensions and there was no attempt to downgrade the institute as a school. The State would contend that Education Department had three Directorates namely DPI (Colleges), DPI (Schools) and DPI (Primary) but they were later bifurcated in the year 1976. At that time, the budgetary control for the institute at Nabha and Patiala came under the control of the DPI (Colleges), Punjab and the heads of institutions were declared the Drawing and Disbursing Officers. However, the staff working in these C.W.P. No.4946 of 1989 -9- institutes were from the school cadres and remained as such till the filing of the petition. The Appointing Authority of the teaching staff still remained under DPI (Schools). The contention, therefore, was that though there was no attempt to downgrade the status of the institutes, except that the teaching staff were from the school cadre but the administrative control came under the DPI (Colleges). The State declined to admit the plea that the teachers could be treated as at par with college lecturers by the only fact that the administrative control came under the DPI (Colleges). 8. In C.W.P. No.8765 of 1991, 15 teachers had joined, of whom Acharya Lekh Ram Dixit was also one, to file the case containing a similar prayer contained in the earlier petition and also to restrain the State from closing down these institutes and directing them not to change the well qualified teaching staff of the institutes by transfers. The Division Bench that admitted the case directed that the same interim order passed in C.W.P. No.8417 of 1990 would be retained. 9. C.W.P. No.5470 of 1991 had been filed at the instance of the Punjab Teachers Union through its Secretary along with one Narender Kaur to quash the order passed by the District Education Officer cancelling certain orders of transfer already made to and from certain schools to the Patiala institute. Interim order of stay of transfer passed in C.W.P. No.8417 of 1990 and C.W.P. No.8765 of 1991 had a strange consequence on orders of transfers effected similarly of teachers to the institute at Patiala and hence came to be cancelled. When the cancellation orders were made, the Teachers Union of the schools took up the cause as aggrieved that there could not have been any bar for C.W.P. No.4946 of 1989 -10- transfer of a school teacher to the institute at Patiala. The order impugned was an order of cancellation of transfer effected on 28.03.1991 by the District Education Officer, all of who belonged to the school cadres. When the case was brought before a Division Bench of this Court, it again stayed the operation of the order of cancellation of transfer. By a further order on 19.07.1991, the Bench passed an interim order directing the Secretary, Education Department, Punjab to consider all the proposals for transfer of “couple cases” in terms of the policy and he should keep the policy in such a way that couples should be kept in the same place nearer to each other as far as possible. At this time, evidently the issue that had assumed importance was whether the transfer could be made to a particular place depending on where other spouse was actually working and the issue of whether the teacher from school cadre could be transferred to the Mahavidyalaya, did not obtain primacy of consideration. To this extent, there existed an anomalous situation of two directly conflicting orders, one, staying transfers to Mahavidyalaya from other schools and another staying cancellation of transfer orders made in obedience to the order passed by the High Court itself. 10. In CWP No.5023 of 1992, the writ petition came to be instituted at the instance of petitioners, who amongst them were persons working in the Department of Sanskrit, Punjabi and Hindi respectively in the Mahavidyalaya at Patiala and petitioners No.15 to 20 were working at Mahavidyalaya Nabha. This writ petition again contained prayer that the Government shall not in any way downgrade the status of Mahavidyalaya as school, particularly when the C.W.P. No.4946 of 1989 -11- Government decided to shift the budget provisions under the Directorate of Schools. The petitioners had, therefore, impleaded the Chief Secretary, Government of Punjab, Secretary, Department of Education and the Director Public Instructions (Colleges) as parties to ensure that budgetary proposals were not sought through the Director of Schools Education. This Court passed an order on 27.03.1995 staying the operation of the order of the Director, Education Department Schools calling for budgetary proposals to be brought through the Director of Schools from 1995-1996. 11. In C.W.P. No.3365 of 1999, the prayer had been for quashing of a decree obtained by one Mahesh Kumar securing a decree for transfer from the school cadre to the Mahavidyalaya when he was working in Senior Secondary School, Civil Lines, Patiala. The petitioners in the writ petition claimed that the decree had been obtained by fraud and collusion even when there was an order from this Court staying the order of transfer of another teacher and making a general order that there shall be transfers only from college cadre. The decree obtained by the 7th respondent-Mahesh Kumar was perceived as collusive in that the State had not properly apprised the High Court's order passed in Sneh Lata's case in the writ petition in C.W.P. No.8417 of 1990. The decree itself had not been given effect to and there had been even a contempt action taken at the instance of 7th respondent by attachment of properties of the respondents. The Court, while ordering attachment, had observed that the Director, School Education, was himself not a party in the proceedings before the High Court in C.W.P. No.8417 of 1990 and it should be left independently to the State to take C.W.P. No.4946 of 1989 -12- appropriate action. 12. In C.W.P. No.3365 of 1999, the State had itself filed an affidavit through the Deputy Director, Colleges and Planning that in view of the fact that the stay had been granted against transfer from school cadre, the teachers of higher faculty, who belonged to college cadre were supposed to be posted to teach the students in this institution but curiously except the acting Pradhan Acharya, Government Sanskrit Mahavidyalaya, Nabha, all others belonged to the school cadre and their pay and seniority were also fixed by the competent authority functioning under the Controller of Director Public Instructions (Schools). The Director Colleges and Planning had pleaded that it was not possible to retain the teaching staff in the new institution and the teaching staff should be sent back to the respective institutions and that the Director Public Instructions (Schools) should be directed to adjust them accordingly. 13. Even when the Director, College Education was making a plea for repatriation of the teachers brought from the school cadre to the institute, the Secretary Education Punjab and the Director School Education and DDO filed independent written statements pleading a case of ignorance of the writ petition filed already and the interim orders of stay of transfers from the school cadre. It is rather strange that Secretary Education could join along with the Director School Education to say that he did not know about the order passed in C.W.P. No.8417 of 1990 and that the decree obtained by Mahesh Kumar came to be passed in the manner that it did only because the concerned department did not know the order passed by this Court. It appears that C.W.P. No.4946 of 1989 -13- when execution proceedings were taken for enforcement of the decree by the 7th respondent, objections had been filed by the State and a civil revision is reported to have been filed before this Court and the same is pending before this Court. No stay has been granted against the said order. Under such circumstance, the 7th respondent had been adjusted at the Mahavidyalaya at Patiala itself. This has been brought to the attention of the Court through an application in C.M. No.8588 of 1999. It can at once be noticed that this order of transfer is brazenly in violation of the order passed in C.W.P. No.8417 of 1990 and the retention of post by the 7th respondent had been fortuitous through a decree passed by a civil court which had not been apprised of the interim order passed by this Court staying any order of transfer from the school cadre to the Mahavidyalaya. C.W.P. Nos.4946 of 1989, 9431 of 1991 and 13673 of 1991 14. The above cases constitute the other category. In C.W.P. No.4946 of 1989, the petitioners No.1 to 6 were all working at the institute at Nabha claiming parity of salary with teachers working in colleges. The petitioners would make pointed reference to the fact that through instructions dated 4.03.1975, Secretary to Government Punjab Education Department to the Director of Public Instructions, Punjab had sanctioned the encadrement of the posts of Pradhana Acharya and Acharya of Sanskrit Mahavidyalaya, Nabha in the college cadre in the pay scale of Rs.400-600 and 300-600 respectively. The State has filed its counter contending that the petitioners had never been appointed from the college cadre but they belonged to the school cadre. The petitioners, however, would file a replication disputing the said fact and C.W.P. No.4946 of 1989 -14- make reference to the letter of Assistant Secretary, Education Department to Deputy Director, College, Education stating that the petitioners were working in college wing of the Sanskrit Mahavidyalaya ever since it was upgraded as college in the year 1972. 15. In C.W.P. No.9431 of 1992, the petitioners No.1 to 4 are the teachers in the Sanskrit Department and the petitioners No.5 to 8 of the Punjabi Department and petitioners No.9 to 11 of the Hindi Department at the Mahavidyalaya at Patiala seeking for relief that they should be granted the pay scale of the college Lecturers pre revised scale of Rs.700-1600 and they should be granted the scales of college lecturers on the principle of equal pay for equal work. It should be noted that even in the written statement filed by the State that Sanskrit Mahavidyalaya, Patiala had been affiliated to the Panjab University, Chandigarh and subsequently to the Punjabi University, Patiala but would contend that mere affiliation of the examining body could not automatically raise the status of the institution and to the staff as that of college. All the petitioners teaching at the Mahavidyalaya belong to the school cadre and they had never been considered as College Lecturers. In C.W.P. No.13763 of 1992, the petitioner had been transferred from the school but would claim the scale as Lecturer on the same lines as contending in C.W.P. No.9431 of 1992. 16. By a reference to the pleadings and all the contentions taken by the parties and particularly with reference to documents, it is clear that by the admission of the State itself, the Institute of Oriental Languages in Patiala had been created as a unique and special institute taking within its fold the Mahavidyalayas at Patiala and Nabha and C.W.P. No.4946 of 1989 -15- brought under the administrative control of the Director, Public Instruction (Colleges). It is also an admitted fact that scales of pay were recommended by the University and the institute itself is affiliated to the University. It will be an anachronism to state that the students would qualify as not coming from schools and pass as Shastries or Gyanis, which are held as degrees equivalent to Graduate and Post- Graduate levels in languages but the person that teaches such students in such institutes will be treated as persons in school cadre. Actually, when the Court was passing interim orders restraining the Government from making transfers from the school cadre, the Director of Instructions (Schools) had not taken note of the interim orders but the Directorate has gone about transferring persons from the school cadre. We have already seen the inconsistent orders that have come about during the long pendency of the proceedings when in one set of writ petitions orders of stay of transfers have been made, and in another set of writ petitions, cancellation of order of transfers itself has been stayed. The Government has also stated in one of the writ petitions, that the Court may issue appropriate clarification to enable them to repatriate all the teachers that had been brought to the institutes from school cadre so that they will be able to effect appropriate transfers from the college cadre itself. 17. We have in these cases a curious situation where in the same institute, there are