IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 14246 of 1990 Date of Decision: August 31, 2009 Suresh Kumar …Petitioner Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Amit Chopra, Advocate, for the petitioner. Ms. Sudeepti Sharma, DAG, Punjab, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. The short issue raised in these two petitions (C.W.P. No. 14246 of 1990 and C.W.P. No. 6648 of 1991) is ‘whether the terms and conditions of taking over a privately managed aided school could be altered at the instance of an employee who has been taken over’. 2. Brief facts of the case are being referred from C.W.P. No. 14296 of 1990. The petitioner was appointed as a teacher on 4.8.1975 in Janta High School, Rattewal, District Hoshiarpur. It was a privately managed recognised school. His appointment CWP No. 14246 of 1990 was approved on the post of JBT Teacher. For appointment to the post of ‘Master’, which is a post in higher pay scale, the qualification of B.A., B.Ed. is prescribed. The petitioner possessed qualification of B.A., B.Ed. On 22.1.1987, the school was taken over by the Government. The petitioner was also taken over as JBT Teacher on ad hoc basis as he was working against an aided post of JBT Teacher. On 21.10.1988, the services of the petitioner were regularised as JBT Teacher (P-1). The petitioner represented to the Government with a request to adjust him as Social Studies Master from the date of taking over. He claims that his case was recommended by the District Education Officer but he has not been adjusted. 3. The stand of the respondents in the written statement is that the petitioner was taken over as JBT Teacher as he was working against the aided post of JBT Teacher in the erstwhile Janta High School, Rattewal, District Hoshiarpur, as per terms and conditions of taking over. It has further been pointed out that he cannot be granted the higher grade of post of Master merely because of his higher qualifications. In order to become entitled to higher grade of the post of Master he has to be appointed first on the post of Social Studies Master. It has also been denied that the District Education Officer ever recommended the case of the petitioner for absorption as Social Studies Master. 4. Having heard learned counsel for the parties I am of the considered view that the terms and conditions of take over cannot be changed subsequently by either party including the 2 CWP No. 14246 of 1990 beneficiary. For the aforesaid view, reliance can be placed on the judgment of Hon’ble the Supreme Court rendered in the case of State of Punjab v. Dev Dutt Kaushal, 1995 Supp (4) SCC 748. In para 5 of the judgment various conditions of take over were noticed by their Lordships’. There was a specific condition that on such take over the Government was to absorb only such staff as was justified on the basis of actual workload in accordance with the norms prescribed under the Government. It was also stipulated that only confirmed and regularly appointed staff through prescribed channel and approved by the University/Department alone was to be taken over. The appointment under the Government was to be subject to the approval of the Public Service Commission wherever the approval was required under the rules and on such appointment under the Government the teachers were to be treated as new entrants. The argument raised by the teacher before Hon’ble the Supreme Court was that he was entitled to continue in service till he was 60 years of age. The aforesaid argument was rejected by observing as under:- “7. The first claim of the respondent is that he is entitled to continue in service till he attains the age of sixty years. It is not possible to agree. It is admitted on all hands that the age of retirement of the college lecturers under the government is fifty eight years. In view of the terms and conditions of the gift deed 3 CWP No. 14246 of 1990 mentioned above, it is plain that the respondent's plea cannot be accepted. There is no clause or condition in the gift deed preserving or saving the age of retirement prescribed in the said private college. Actually on the take over of the college, the teachers / lecturers had no right as such to be absorbed or to be appointed under the government. Their appointment in government service was subject to fulfilment of certain conditions specified above. The gift deed repeatedly states that on such appointment, they shall be treated as "new entrants" and shall be placed at the bottom of the seniority list, as on the date of the absorption, in the relevant grade/category. The gift deed further stated that in matters not specifically provided for therein, the government's rules, regulations and orders will apply. In such a situation, it is obvious that the claim for continuance till the attainment of sixty years is simply not acceptable.” 5. In the present case the private managed school with the name of Janta High School, Rattewal, District Hoshiarpur, was taken over by the State Government on 22.1.1987. The petitioner was working as JBT Teacher against an aided post and his services were also taken over as such. He was never taken over as Social Studies Master and there was no stipulation in the deed of taking over that the persons with qualifications of B.A. 4 CWP No. 14246 of 1990 B.Ed. were to be considered as Social Studies Masters/Mistress. The qualification of B.A. B.Ed. would not entitle the petitioner to claim that he should be absorbed as Social Studies Master which is a post in higher pay scale and higher cadre. Moreover, even in the Government Schools a JBT Teacher having qualification of B.A. B.Ed. cannot be given either higher pay scale of Master/Mistress nor for that reason he could be appointed on the post of Master. The pay scales used to be linked with qualifications but the State of Punjab withdrew the instructions dated 23.7.1957 linking the pay scale with qualifications and issued new instructions on 19.2.1979. The aforesaid position emerges from the judgment of Hon’ble the Supreme Court rendered in the case of Gurpal Tuli v. State of Punjab, AIR 1984 SC 1901. Looking from the aforesaid angle also, the petitioners do not deserve any relief. 6. As a sequel to the above discussion, these petitions fail and the same are dismissed. (M.M. KUMAR) August 31, 2009 JUDGE Pkapoor 5