http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: DR. CHITTARANJAN SHARMA & ORS.

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH & ANR.

DATE OF JUDGMENT:       19/09/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These appeals  by special leave arise from the order of the Administrative  Tribunal  made  on  December  15,  1986. Admittedly thee  H.I.M. Ayurvedic  Degree College,  Paprola, District Kangra  was taken over by the Government and handed over to  the H.P.  Health  and  Family  Welfare  Department. Clause (3) of the agreement envisages as under:      "The service of the existing staff,      principal, Teaching  Administrative      and other employer on regular basis      in  the   college  who  fulfil  the      requisite  qualifications  and  age      conditions may  be taken  over with      effect  from   3.3.1978  after  due      screening if  done by  a purpose by      the Government  in which  2 members      i.e. principal and Manager from the      Managing Committee  shall  also  be      included. Service  of  the  present      employees   will    be    protected      according to Government rules."      In accordance therewith, the existing staff, principal, teaching, administrative  and other  employees  employed  on regular basis in the college were eligible to be absorbed on regular  basis   provided  they   fulfilled  the   following conditions: (1)  they were appointed on regular basis in the college before taking over; (2) they possessed the requisite qualifications  prescribed  for  the  posts;  and  (3)  they fulfilled the  age condition  at the  time  of  taking  over w.e.f.  March   3,  1978.   On  fulfillment   of  all  these conditions, they  would be  sent to  a  screening  committee constituted for  the purpose by the Government including two members, i.e.,  the Principal  and Manager  of the  Managing Committee  to  represent  the  employees  in  the  screening committee. On  recommendation made  by  the  Committee,  the regular absorption could be made.      Unfortunately,  the   appellants  were   not  regularly appointed; nor did they possess the requisite qualifications for absorption  on regular basis in the posts as on the date of the  take over. Resultantly, instead of throwing them out

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

of service  by retrenchment,  the Governor  issued the order exercising the  power under  proviso to  Article 309  of the Constitution on  May  24,  1980  in  consultation  with  the Himachal Pradesh  Public Service  Commission and  Rules  for Recruitment  and   Promotion  of   the   Ayurvedic   College employees,  Paprola,   District  Kangra.   Admittedly,   the appellant even  then did  not satisfy  those  qualifications proscribed under  the Rules. Resultantly, they were absorbed in suitable administrative posts to which they are eligible. When they  challenged their  absorption, the Tribunal in the impugned order  directed to  maintain the scale of pay which they were  drawing on the date of the take over and directed their  absorption   in  the   posts  of  Ayurvedic  Chikitsa Adhikaris etc. Thus, these appeals by special leave.      It is  seen that  since the appellant had not fulfilled the requisite qualifications either when they were initially appointed  by  the  committee  before  take  over  nor  when statutory rules  were made  by the  Governor so as to enable for absorption.  Instead of  retrenching them  from services due to  nonfulfillment came  to absorb them in the Ayurvedic Chikitsa Adhikaris  posts etc.  to which  they are eligible. The Tribunal  has given  the direction  to maintain the pay- scales and  to make  adjustment and  absorption. In our view directions are  correct and  based on equity and do not call for any  interference.  They  may  also  be  considered  for further promotion from the absorbed posts in accordance with the rules.      The appeals are accordingly dismissed. No costs.