IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 4981 of 2008. Date of decision: 25.8.2010 Raj Paul …. Petitioner Versus State of H.P .... Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the petitioner: Mr.K.D.Shreedhar, Advocate. For the respondent: Sh.Vivek Singh Thakur, Addl.A.G with Sh.Rajesh Mandhotra, Dy.Advocate General. Deepak Gupta, J.(Oral) 1. The admitted facts of the case are that the petitioner who is a Post Graduate in History having 2nd Division but less than 55% marks was appointed as a Lecturer in a private college known as National College, Amb. This college was taken over by the State Government on June 18, 1997 and renamed as Maharana Pratap Government Degree College, Amb. 2 The Government had issued a notification on 25.8.1994 laying down the terms and conditions for taking over the privately managed colleges and the services of the teaching and non-teaching staff. We are in this case concerned with Clause 7 of the said terms and conditions which reads as follows:- “7.The services of qualified teaching and non-teaching staff appointed one year earlier who fulfill, prescribed departmental recruitment and promotion rule conditions, prevalent at the time of taking over will be considered for taking over subject to the approval of the State Public Service Commission or Departmental Screening Committee from the date of taking over. The services of the Principal will be taken over only as Senior most lecturer of the college concerned subject to the above mentioned proviso. The Government scales in respect of the respective categories shall be permissible to them after the take over. 8. The services of the superannuated, unqualified, under qualified adhoc part time, contingent paid, daily waged, teaching and non-teaching employees will not be taken over.” 2. It is not in dispute that in the year 1972, when the petitioner joined the private college, the minimum educational qualification for service in a Government college was only Post Graduation (second class) and 3 there was no minimum requirement of having 55% marks. This requirement came into force only w.e.f. 9.3.1992. 3. The contention of the petitioner is that since he joined in the year 1972, the Regulations, as applicable in the year 1972, would be applicable and the Government cannot now enforce the Regulations (Educational Qualification) of 1992 in respect of the persons like the petitioner. It is also submitted that there is discrimination and violation of Article 14 of the Constitution of India in as much as the lecturers in Government Colleges who joined prior to 1992 and had less than 55% marks in Post Graduation continued to be treated as lecturers (College Cadre) whereas the petitioner was placed in the lower category of Lecturer (School cadre). 4. Under para 7 of the terms and conditions quoted hereinabove, it is for the authority taking over the college to decide, what are the terms and conditions which the employees must fulfil. The relevant date in such a situation is not the date when the employee was first appointed by a private college but the date on which his services are to be taken over by the State. The conditions provide that as on the date of taking over the services of 4 the employees of the private colleges which have been taken over they must fulfil the minimum qualifications which are prescribed at that relevant time. There is no discrimination in this regard. The Government was not the employer of the petitioner, when he joined the private college and continued to work as such. The Government comes into play only when the services of the employees of the private college are taken over and the date relevant for fulfilling the minimum educational qualification is the date of taking over the college. 5. True it is, that the persons who had joined Government service as college lecturers will continue even though the educational qualification has been enhanced but this will make no difference. To give an example, a person may have joined Government service as college lecturer before the year 1993 when the minimum percentage of 55% had not been prescribed. He would be required to have a degree of second class Post Graduate. With him other persons may have appeared in the interview or selection test, who may not have qualified and were not selected. If these persons appear in subsequent years, they are bound to fulfil the 5 qualifications laid down in the subsequent years and cannot claim that just because they were eligible in the previous years, they should be held to be eligible even later on. The relevant date, in my considered opinion, is the date of taking over of the college and not when the petitioner joined service. Therefore, the petitioner cannot be treated to be a College Cadre Lecturer. 6. The petitioner due to the stay order passed by the learned Tribunal had continued to work as Lecturer (College Cadre) and had in fact, retired from the said post in the year 2006. According to Sh.K.D.Shreedhar, learned counsel for the petitioner, the petitioner was never given any increments after the year 1998 nor his pay was fixed in the revised pay in the year 2006 and no revision of his pay scale was done. 7. In view of the above discussion, the petitioner will be held entitled to pay, increments and revision of pay in the scale of School Cadre Lecturer only. These can be worked out and in case any amount is due and payable to the petitioner, the same shall be paid to him alongwith interest. If on the other hand, it is found that due to the stay order passed by the learned Tribunal, the petitioner 6 has been overpaid, no recovery shall be made from him since he had actually worked against the post of College Cadre Lecturer but he cannot be held entitled to the increments and fixation of pay in the scale of pay payable to a College Cadre Lecturer. 8. The petition is disposed of in the aforesaid terms. No order as to costs. August 25, 2010 (Deepak Gupta) (m) Judge