17 April 1996
Supreme Court
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STATE OF PUNJAB Vs TARA SINGH SHAHI

Bench: AHMAD SAGHIR S. (J)
Case number: C.A. No.-001507-001507 / 1996
Diary number: 8225 / 1995
Advocates: G. K. BANSAL Vs ASHOK K. MAHAJAN


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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: TARA SINGH SHAHI

DATE OF JUDGMENT:       17/04/1996

BENCH: AHMAD SAGHIR S. (J) BENCH: AHMAD SAGHIR S. (J) JEEVAN REDDY, B.P. (J)

CITATION:  JT 1996 (6)    26        1996 SCALE  (3)716

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD,.J.      Guru  Nanak   College  at   Gurdaspur  was   a  private institution  affiliated   to  Guru   Nanak  Dev  University. Respondent 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.  1987 on  the condition  that only those   staff    member   who   possessed   thee   requisite qualification   would along be absorbed and that too as "new entrants" while  the  Principal  of  the  college  would  be brought in  as senior-most  lecturer and  not as  principal. This Memorandum  was 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 IIth 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:      "1.  In  pursuance   of  the   said      agreement,   the    donors   hereby      transfer to  the Govt.,  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 management  and control  of      the Guru  Nanak  College  Gurdaspur

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    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      Committee of the college concerned.      5.   It is  agreed that the college      on  being   taken   over   by   the      Government  should   not  be  over-      staffed and 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      approved  of   the  Punjab   Public      Service      Commission       where      applicable.      6.   It is agreed that such members      of the  Staff  of  the  college  as      fulfil necessary qualifications and      are   considered    suitable    for      absorption in Government service by      the P.P.S.C. Sub-Board/Departmental      Committee 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           exist      ing pay and allowances or any      other per fitness.      7.   It is  further agreed that the      staff, subject to their suitability      may  be   regularized  but   shall,      however,   be    subject   to   the      condition  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      Government   employees   in   their      respective  cadre   including   the      principal who  will be  absorbed as      senior most lecturer intense of the

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    concerned college." 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 Senior-most 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   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 to 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 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 absorption  as Principal  of the  college. It  is 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 brought 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 he 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 as 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 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 laches. 8.   What is the binding effect of the gift deed and to what extent it  would regulate  the conditioner  service  of  the members of  the staff  was considered by this Court in State of Punjab  & Ors.Vs. Dev Dutt Kaushal & Ors.. 1995 (4) Supp. SSC 784=JT  1995 (6)  SC 225  by a  Bench of which one of us (Hon’ble B.P.Jeeven  Reddy, J.) was a Member. The Petitioner 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 gift deed containing terms  and conditions  similar and  identical  to those contained in the gift deed in the Instant case. lt was held by  this Court that in view of the terms and conditions of the  gift deed,  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

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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-I) Rules, 1976 made under Article 309 of the Constitution. Rule 9 provides as under:      "9.  (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           recruitment   shall    possess           knowledge   of    Punjabi   of           Matriculation      or      its           equivalent standard  which  he           shall  have   to  acquire  the           requisite knowledge  within  a           period of  six months  of  his           appointment  after   which  he           shall be  required to  pass  a           test of the aforesaid standard           as may  be  specified  by  the           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    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  from                amongst  the   member  of                Punjab        Educational                (College  Cadre)  Service                (Class-   II)    or    by                transfer  or   deputation                from     other-     State                Governments,   Government                of    India     or    the                universities having  such                experience, Government of

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              India   or   universities                having such experience as                is specified  in appendix                "B".                (b) 50  per cent  of  the                posts      by      direct                recruitment."      (2)       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:              "APPENDIX "B"               [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:      Experience of working as a Lecturer      for  a   minimum  period  of  eight      years." 13. By  Notification dated  27.11.81. the Governor of Punjab relaxed the Rules in the case of service lecturers in Punjab Government Colleges as under:      "(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    recognized           University be  relaxed to  the           extent  that  the  educational           qualifications    for    these           personnel should  be the  same           which were  prescribed at  the

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         time  of  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  appointment  or absorbed on  that 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 Article 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 confirming  the findings  though  it  had  not  expressly adverted  itself to this question. 16.  Contention of  the learned  counsel for  the respondent that in  view of  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 the  University were  laid down,  the respondent shall be deemed to  possess the  requisite qualification,  cannot  be accepted as the government took over the college in 1983 and had already  prescribed  the  qualifications  for  posts  of lecturers and  Principal in  the Government College by Rules made under Article 309 of the Constitution. Appointments and promotions 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 25.1.95  is hereby  set aside  and  the  writ petition of respondent is dismissed but without any order as to costs.