STATE OF PUNJAB AND ORS.

TARA SINGH SHAH!

APRIL 17, 1996

[B.P. JEEVAN REDDY ANDS. SAGHIR AHMAD, JJ.]

Punjab Educatio11al Se1vice (College Cadre) (Class I) Rule, 1976: Rule 9(i) read with Appe11dix B-University affiliated p1ivate college take11 over by State--P1i11cipal absorbed in Service as se11ior-most Lecturer toms of gift C deerl-!11cumbent 11ot possessing requisite qualification-Whether entitled to appoi11tme11t to the post of Pri11cipal i11 Government college-Held, no-Qualification prcsoibed by Unive1'ity for the post i11 p1ivate affiliated co/lege,,-..Whether relevant-Held, no.

Rule 9(i) of the Punjab Educational Service (College Cadre) (Class D I) Rules, 1976 bars a person from being appointed to a post in the Service

by direct recruitment unless he possesses the educational c1ualifications, professional training and other c1ualifications as specified in Appendix B.

Appendix B laid do\111 M.A. First Division or high Second Division (55% marks) in the relevant subject as the qualification with 8 years' teaching E experience for appointment to the Service.

The respondent was Principal of a private college affiliated to the Guru Nanak Dev University. The said college was taken over by the appellant State GoYernment under a gift dee_d dated 11th July 1983 specifically providing that only those members of staff who possessed requisite F qualifications would be absorbed as new entrants and that the Principal would be brought in as senior-most Lecturer and not as Principal. The respondent took over as senior-most Lecturer in the college on 11th July 1983 in pursuance of the gift deed and has been working as such. On his writ petition filed on 11th January 1988 the High Court directed the G appellant State to absorb as Principal.

It was contended for the appellant State that the respondent as member of the Managing Committee of the College, was present in the meeting in which the taking over of the college was approved on the terms set out in the gift deed, and therefore, he cannot claim the post of Principal H of the college. It was further pointed ont since the respondent was M.A,

STATE v. T.S. SHAHJ 491

Second Division with 52o/o marks, he \Vas not lJUalified to be appointed to A the post of Principal.

Allo\\ing the appeal, the Court

HELD : 1. The respondent was not 11ualified under the Rules for appointment to the post of Principal of the college since he 'vas M.A.

B Second Division lvith 52 per cent marks. He could not, therefore1 legally clain1 such appoitment, nor was it possible for the High Court to have issued a Mandamus that the respondent be appointed or absorbed on that post. Articles 14 and 16 of the Constitution, which contain the Rule of Equality do not envisage that a person who is not qualified for appoint- C n1ent can still claim such appointment merely on the basis of Fundamental Rights available under Articles 14 and 16. He cannot, in fact, invoke the provisions of those articles as he has first to posses the essential qualification before invoking the Rule of Equality. The finding of the Single Judge of the High Court that the respondent possessed the requisite 11ualification is, therefore, erroneous. The Division Bench also was in error in confirming that finding. [ 497 EH]

2. The respondent could not be deemed, by virtue of the University circular dated 6th February 1981 laying down qualification for appoint 1nent to the post of Principal in affiliated colleges, to posseSs the requisite

qualification. The Government took over the college in 1983 and had already prescribed the qualifications for the posts of lecturers and Principal in the Government colleges by Rules made under Article 309 of the Constitution. Appointments and promotions have therefore to be made strictly in accordance with the provisions contained in these Rules and not

in any other manner. [498-A-B] F

State of Punjab & Ors. v. Dev Dutt Kaushal & 01"., [1995] 4 Supp.

SCC 784, JT (1 ~95) 6 SC 225 referred to.

CIVIL APPELLATE JURISDICTION Civil Appeal No.1507 of G 1996.

From the Judgment and Order 24.1.95 of the Punjab & Haryana High Court in C.W.P. No. 1264 of 1992.

P.P. Rao, G.K. Bansal and Manoj Swarup for the Appellants.

A J.S. Khehar and Ashok K. Mahajan for the Rc, pondenl.

The .I udgment of the Court was delivered hy

S. SAGHIR AHMAD, J. : Guru Nanak College at Gurdaspur was a private institution affiliated to Guru Nanak Dev University. Respondent B was appointed as Principal of the college by a resolution of the Managing Committee adopted on 27th of May, 1975. His appointment was approved by the Vice Chancellor on 30th of June, 1975 and thereafter he was confirmed on that post with effect from 31st of May, 1976.

2. Guru Nanak College, as also three other colleges were proposed to be taken over by the Government under its Memo dated 30th of September, 1982 on the condition that only those staff members who possessed the requisite qualifications would alone be absorbed and that too as "new entrants" while the Principal of the college would be brought in as senior-most lecturer an<l not as Principal. This Memorandum was D considered by the Managing Committee of the college in its meeting held on 18th of May, 1983 and was approved, Consequently, a gift deed dated 11th of July, 1983 was executed between the management of the college and the State Government in which the management was described as

donors and it was provided, inter alia, as under :

"l. Jn pursuance of the said agreement, the donors hereby transfer to the G0\1., by way of gift all the properties in the form of buildings, fields, gardens, staff quarters, lands, equipments, furniture, library books, science apparatus and other assets etc. at present attached with the college or standing in the name of the college as are specified in Schedule 'A' including the right of college managemnt and control of the Guru Nanak College, Gurdaspur District, Gurdaspur to have and to hold the same to the Government absolutely for ever.

2 ................................................................................................ ..

3 ................................................................................................ ..

4. It is agreed that Government shall not accept any liability or responsibility for the period prior to the taking over of the college by them. All such liabilities shall be cleared by the Managing H Committee of the college concerned.

STATEv. TS.SHAH! [S.SAGHIRAHMAD.J.] 493

5. It is agreed that the college on being taken over by the Government should not be over-staffed any only such staff will be kept as is justified on the basis of actual workload in accordance with the prescribed norms for different categories of staff. Confirmed and regularly appointed staff through prescribed channels and approved by the University/department will be taken on ad hoc basis subject to the approval of the Punjab Public Service Commission where applicable.

6. It is agreed that such members of the staff of the college as fulfill necessary qualifications and are considered suitable for absorption in Government service by the the P.P.S.C. Subordinate services selection Board/Departmental Comm'ttee shall only be taken over in Government service and then treated as new contracts. But the Principal will be taken over only as senior most lecturer of the concerned college. The Government scale in respect of respective categories shall be permissible to them and there shall be no personal grade for any one. Their pay in the Government scale will be fixed on the basis of their length of service in equivalent/identical or higher time scale. There shall be no guarantee in regard to protecting their. existing pay and allowances or any other per fitness.

7. It is further agreed that the staff, subject to their suitability may be regularised but shall, however, be subject to the conditions laid down in clause 8.

8. It is agreed that the members of the staff will be treated as fresh entrants and they will be placed at the bottom of the old Govern- F ment employees in their respective cadre including the principal who will be absorbed as senior most lecturer intese of the concerned college.TT

3. In pursuance of the aforesaid gift deed, the staff members of the college were absorbed in Government service and the respondent who, prior to the taking over of the college by the Government, was working as Principal, was brought in as seniormost lecturer.

4. The respondent wanted to be absorbed as Principal of the college

and since it was not done, he represented to the Government and when no H

A action was taken on his representation, he filed the writ petition in the Punjab & Haryana High Court which was allowed by the Single Judge on 6th of August, 1992 with a direction to the appellants lo absorb him as Principal of the college. It is this judgment which was upheld by the Division Bench of the High Court and is now being questioned here in this

B Court.

5. Learned counsel appearing for the State of Punjab has contended that the claim of the respondent for absorption as Principal of the college was wholly out of place and the High Court was in error in issuing a direction for the respondent's absorption as Principal of the college. It is C pointed out that the respondent, in his capacity as Principal of Guru Nanak College, was already a member of the Managing Committee and in the crucial meeting of that Committee, held on 18.5.83, in which the taking over of the college was approved on the terms set out in the gift deed, he was present and, therefore, cannot claim the post of Principal of the college as it was specifically provided in the gift deed that the Principal would be D bronght in only as a senior-most lecturer and not as Principal.

6. The respondent admittedly was the Principal of the private institution which was taken over by the Government under a gift deed dated 11th of July, 1983 in which the terms and conditions on which the members of the staff would be absorbed were set out. A perusal of these conditions which have already been reproduced above, would indicate that while the Government was not bound to absorb each individual member of the staff unless he possessed the requisite qualifications, the erstwhile Principal was to be absorbed as senior-most lecturer and not is Principal. Since members of the staff were absorbed in terms of the Gift Deed, as new entrants, they were placed at the bottom of the seniority in the related cadre.

7. The respondent took over as senior-most lecturer in the college with effect from 11th of July, 1983 and has been working as such. He, however, filed the writ petition in the High Court on 11.1.88 invoking the G writ jurisdiction of the Court after about four and a half years. His petition was thus liable to be rejected on the ground of delay and !aches.

8. What is the binding effect of the gift deed and to what extent it would regulate the conditions of service of the members of the staff was considered by this Court in State of Punjab & Ors. v. Dev Dutt Kaushal & H Ors., [1995] 4 Supp. SCC 784 = JT (1995) 6 SC 225 by a Bench of which

STATEv. T.S.SHAJU[S.SAGHIRAHMAD, J.] 495

one of us (Hon'ble B.P. Jeevan Reddy, J.) was a Member. The petitioner A in that case had claimed the benefit of retirement at the age of 60 years instead of 58 years on the basis of his being a lecturer in a private institution which was subsequently taken over by the Government under a gift deed containing terms and conditions similar and identical to those contained in the gift deed in the instant case. It was held by this Court I hat in view of the terms and conditions of the gift dQed, it was not possible to accede to the request of the petitioner for being superannuated at the age of 60 years as it was specifically provided in the gift deed that in respect of matters which were not specifically provided for by the gift deed, the Government Rules would apply under which the age of retirement was 58 years. Consequently, the claim of the petitioner was rejected.

9. The gift deed of that case is identical in its tenor and contents to the gift deed in the instant case and, therefore, the question as to the binding nature of the gift deed on the Management and Members of the staff is concluded by the aforesaid decision.

10. Recruitment to and conditions of service of the post of Principal and other Class-I posts in the government colleges were regulated by Rules known as Punjab Educational Service (College Cadre) (Class-1) Rules, 1976 made under Article 309 of the Constitution. Rule 9 provides as under:

(i) No person shall be appointed to a post in the Service by direct recruitment unless he possesses the educational qualifications, professional training, and other qualifications as specified in appendix 'B'.

(ii) A person appointed to a post in the Service by direct F recruitment shall possess knowledge of Punjabi of Matriculation or its equivalent standard failing which he shall have to acquire the requisite kno\Vledgc \Vithin a period of six n1onths of his .appointment after which he shall be required to pass a test of the aforesaid standard as may be specified by the G State Government, otherwise his services shall be liable to termination."

11. Method of recruitment, indicated in Rule 10, is quoted below :

"10. (1) Appointment to the posts in the Service shall be made in H

(2)

the manner indicated below :

(i) In the case of Director of Public Instruction (Colleges) by selection from amongst the members of the Service;

(ii) In the case of other posts in the Service-

\a) 50 per cent of the posts by promotion amongst the members of Punjab Educational (College Cadre).Serviee

(Class 11) or by transfer or deputation from other State Governments, Government of India or the universities having such experience as is specified in appendix nBn.

(b) 50 per cent of the posts by direct recruitment."

All appointments to the posts by promotion shall be made on the basis of seniority-cum-merit and no person shall have any right for promotion merely on the basis of seniority.

(3) Whenever a vacancy occurs or is about to occur, the Government shall determine the manner in which it shall be filled.

12. Qualifications prescribed for appointment to the post of Principal were indicated in Appendix "B" which is quoted below :

11APPENDIX

11B 11

[Rule 9 (i)]

"Qualifications and experience for appointment to the Service (i) by direct recruitment. (ii) by promotion.

(i) By Direct Recruitment :

(a) M.A. First Division or High Second Division (50%) in

relevant subject or an equivalent degree of a foreign

University with 8 years' teaching experience.

(b) Ph.D. with 8 years' teaching experience.

(ii) By Promotion :

STATE v. T.S. SHAH! [S. SAGHIR AHMAD • .!.] 497

Experience of working as a Lecturer for a minimum period of eight A

years.!'

13. By Notification dated 27.11.81, the Governor of Punjab relaxed the Rules in the case of serving lecturers in Punjab Govern1nent Colleges

a.sunder:

"(1) The upper age limit of 45 years prescribed under rule 8 of the Rules ibid, be relaxed to the extent of 52 years of age.

(2) Qualifications for appointment to the service by direct recruitment under rule 9(i) Appendix 'B' of the rules ibid has been prescribed M.A. First division or High Second Division ( 55%) in the relevant subject or an equivalent degree of a recognised University be relalied to the extent

that the educational qualifications for these personnel should be the same which were prescribed at the time of D their selection as lecturers."

14. This Notification was issued in exercise of powers conferred under Rule 19 of the Punjab Educational Service (College Cadre) (Class-I) Rules, 1976.

15. It is pointed out that since respondent was M.A. Second Division with 52% marks, he was not qualified to be appointed to the post of Principal as the qualification required for appointment on that post was "M.A. First Division" or "High Second Division (55%)". It is thus apparent that respondent not being qualified for appointment to the post of Principal could not legally claim such appointment nor was it possible for the High Court to have issued a Mandamus that the respondent be appointed or absorbed on thi:1t post. Articles 14 & 16 which contain the Rule of Equality do not envisage that a person who is not qualified for appointment can still claim such appointment merely on the basis of Fundamental Rights available under Articles 14 and 16. He cannot, in fact, invoke the provisions of those Articles as he has first to possess the essential qualification before invoking the Rule of Equality. The finding of the Single Judge of the High Court that the respondent possessed the requisite qualification is, therefore, erroneous. The Division Bench also was in error in c:onfirming the

findings though it had not expressly adverted itself lo this question.

16. Contention of the learned counsel for the respondent that in view uf the Circular dated 6th of February, 1981 issued by the Guru Nanak Dev University, Amritsar in which the qualification for appointment to the post of Principal in colleges affiliated to the University were laid down, the respondent shall be deemed lo possess the requisite qualification, cannot be accepted as lhc Government took over the college in 1983 and had already prescribed the qualifications for post of lecturers and Principal in the Government Colleges by Rules made under Article 309 of the Constitution. Appointments and promotions have, therefore, to be made strictly

in accordance with the provisions contained in these Rules and not in any other manner.

17. In view of the above, we allow this appeal. The judgment and order dated 6.8.92 passed by the Single Judge and upheld by the Division Bench of the Punjab & Haryana High Court on 24.1.95 is hereby set aside and the writ petition of the respondent is dismissed but without any order as to costs.

P.S.S.

Appeal allowed.