Case: Ahalya A. Samtaney Vs. The State of Maharashtra and Ors

her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her. The letter dated 16.11.1993 may usefully be referred to for this purpose, which reads as under:I have to state that Mrs. A.A. Samtaney REST category teachers the Degree College was transferred to the Junior College for want of workload as per the above orders she is to be absorbed as Lecturer in the Degree College, in the Vacancy be filled in now, the particulars are as below:(1) Mrs. A.A. Samtaney was working as Tutor in English from 16.12.1974 to 14.3.1975, she was again appointed as Tutor in English from 15.7.1975, but was promoted as Lecturer in English from 1.8.1975. She would have continued as Lecturer in English during the academic year 1975-76, but for the loss work-load in the Degree College, she was transferred to the Junior College, with effect from 1.10.1976. She is working in the Junior College till today.17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension.18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant.19. We have to really, thus, only examine as to what is the effect of this artificial break of one day, which was given to the Appellant, as otherwise the Appellant is fully covered and is entitled to the benefit under the Resolution dated 27.11.1991.20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.2005. In a sense this is also an identical case of an artificial break arising from the change in the education pattern. We may usefully extract para 16 of the said judgment as under:16. The Petitioner was undoubtedly in continuous service. Indeed, what is termed as a break was at the highest an artificial break. From the correspondence referred to above, it appears to us clear that there in fact was not even an artificial break, for the re-appointments were from the very next date. However, even assuming that the same in the Petitioners case amounted to an artificial break, the Petitioner is adequately safeguarded by the circulars/resolutions issued by the Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the Government recorded the fact that it had considered the representations made to it regarding such breaks; that it was observed that in most of the cases services of the teachers in junior colleges were terminated at the end of every academic year and they were appointed for the next academic year without benefit of continuous service and that it had further been represented to Government that such teachers should get the status of confirmed teachers if they had put in, in all, 24 months service even though it was not continuous due to the breaks given by the managements of the Non-Government Junior Colleges. It was observed that such practice had resulted in a sense of insecurity amongst the employees and deprived them of benefits of continuous service. It was therefore directed that a total of 24 months service in the same institution over-looking the break in service, should qualify junior college teachers to be treated as substantive subject to certain conditions. The Petitioner admittedly complied with all such conditions. Thereafter, by a further resolution dated 26.2.1981 this resolution was extended mutatis mutandis. The same was so far as it related to the counting of break periods towards completion of probation period of 24 months in respect of teachers of Non-Government Junior Colleges to the teachers of Non-Government Senior Colleges in the State as well.21. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service.22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. We may note that delay and laches has also been found to be an additional obstruction in the way of the Appellant as the pay-scale was fixed in the year 1976 while the petition was filed in the year 1998This is so as the Appellant was working under the old pattern of 10+4 in the senior college, but for no fault of hers, on account of change in the education pattern to 10+2+3, she was rendered "fully surplus" in the degree college in June, 1976. As a consequence of the same, the services of the Appellant were terminated from the senior college by the letter dated 29.9.1976, but came along with an almost simultaneous/immediate transfer in the junior college with effect from 1.10.1976. It is also relevant to note that the appointment letter records that the salary of the Appellant shall remain the same. However, when the Appellant joined the junior college from 1.10.1976 she was given the pay-scale of Rs. 500-900 instead of Rs. 700-1600. This was so, as under the Resolution dated 11.6.1976, extracted partly aforesaid, the Appellant would not fit in any of the categories of P-1 to P-5. The Appellant, being a tutor on the cut-off date of 7.2.1975, would not fall in categories P-1 to P-3, while though a tutor was covered under categories P-4 and P-5, she did not meet the requisite parameters thereof. It was for the benefit of such persons like the Appellant, who did not fit in any of the categories, that the same were declared as "rest category" in the Government of Maharashtra Resolution dated 27.11.1991, and were accordingly given the benefit of the pay-scale of Rs. 700-1600 from their initial appointment date in the senior college16. There is really no dispute that the Appellant falls in the "rest category". This is inter alia acknowledged in the letter of the Principal of the College dated 16.11.1993 noticing that but for the loss of workload in the degree college she would have been working in the senior college but had to be re-appointed in the junior college. Once again in the letter dated 16.11.1993 addressed by the College to the University it is categorically stated that the Appellant falls in the "rest category". The only ground on which the Government refuses to consider her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.200521. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed.