Case: State of Orissa and Another Vs. N.N. Swamy and Others Etc

date cannot be countenanced. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred 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 Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant 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 16(1 ) of the Constitution 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, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)." 11. Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively 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 educational 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 teaching 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 institution. 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. 12. 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 already 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 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 experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely different matter. 13. We are, therefore, clearly of opinion that all the Respondents 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.

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

Explanation:
0[ds]It is thus clear that the condition of drawing of Rs.600/- 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, whatever, 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. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred 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 Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant 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 16(1 ) of the Constitution 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, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.)   on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively 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 educational 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 teaching 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 institution. 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 already 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 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 experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely differente are, therefore, clearly of opinion that all the Respondents 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.