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PETITIONER: BANARAS HINDU UNIVERSITY, VARANASI AND ANR.

       Vs.

RESPONDENT: DR. INDRA PRATAP SINGH

DATE OF JUDGMENT24/01/1992

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1992 AIR  780            1992 SCR  (1) 360  1992 SCC  Supl.  (2)   2 JT 1992 (1)   320  1992 SCALE  (1)185

ACT:      University  Grants Commission-Merit  Promotion  Scheme- Para 2 (a)-Object and scope of.      University-Lecturer-Promotion as Reader-Requirement  of "eight  years continuous service"-Appointment  as  temporary lecturer in Banaras Hindu University-Gap of 3 months and  20 days in service-Appointment as Reader in Nagpur  University- Reappointment   as  permanent  Lecturer  in  Banaras   Hindu University-Claim  for promotion as Reader held  sustainable- Held para 2 (a) recognizes eight years service in more  than one   University-Gap   in  service  held   of   the   nature contemplated  by  para  2 (a)- Service  rendered  in  Nagpur University  held liable to be counted towards  eight  year’s service.

HEADNOTE:      With  a  view to providing an  incentive  to  teachers, preventing   stagnation   and  also  for   improving   their efficiency the University Grants Commission evolved a scheme called  "Merit Promotion Scheme".  On being  selected  under the  said  scheme  a lecturer is designated  as  Reader  and becomes  entitled  to  a  higher  pay  scale.   One  of  the conditions  under the scheme which a lecturer  must  satisfy before  he becomes entitled to promotion is eight year’s  of continuous service of which at least four years should be in the institution where he is being considered for promotion.      The  respondent  was  appointed as a  lecturer  by  the appellant-University,  on temporary basis, on  26.8.1974  in the  Department  of  Basic Principles in  the  Institute  of Medical Sciences for a period of eleven months.  At the  end of eleven months, he was re-appointed on the same basis  for a  further  period  of  eleven months.   By  means  of  such appointments   he  served  as  a  temporary  Lecturer   from 26.8.1974   till  31.3.1980.  There  was  no  re-appointment thereafter and from 1.4.80 to 20.7.80 he remained without  a job.  On 21.7.80 he was appointed as a Reader in the  Nagpur University  where he served till 20.9.82. On 22.9.82 he  was appointed   as  a  permanent  lecturer  in  the   appellant- University in the same Department where he worked earlier                                              361

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temporarily and his salary was fixed by giving him  fourteen increments so as to protect his last pay drawn at Nagpur.      In  1983  the respondent claimed  promotion  under  the Merit Promotion Scheme but the University rejected his  case on  the ground that he does not satisfy the  requirement  of eight  years’  of continuous service in  the  cadre  because there was a break in his service between 1.4.80  to  20.7.80 and  that  his service in the Nagpur  University  cannot  be counted.      The respondent filed a writ petition in the High  Court and  pursuant to an interim order passed by the  High  Court the  respondent’s  case  was  considered  by  the  Selection Committee  and the decision of the Committee  was kept in  a sealed cover.      The  High  Court allowed the petition by  holding:  (i) that  the respondent’s service in the Nagpur University  was liable  to  be counted towards the eight  years’  continuous service   because  para  2  (a)  of  the  scheme   expressly recognizes service in more than one University; (ii) a long- standing  practice  of  the University was  to  condone  the breaks in service in such cases. Consequently the High Court quashed   the  University’s  order  rejecting   respondent’s application   and   directed   the   University   to   place recommendations  of  the  Selection  Committee  before   the Executive  Council  and to promote him as Reader if  he  was approved by the Executive Council.      The University filed an appeal in this Court contending that  (i)  the  High  Court erred in  holding  that  the  re spondent   satisfied   the  requirement  of   eight   years’ continuous  service;  (ii) the power of  the  University  to condone  short breaks in service was exercised in cases only where the delays in reappointment were caused by  procedural delays  in  the  office of University;  (iii)  there  was  a definite break in the respondent’s service and such a  break has never been condoned by the University.      On behalf of the respondent it was contended that  para 2 (a) of the scheme recognizes a teacher serving two or more Universities  for the purposes of "continuous  eight  years" service;  (ii) the requirement of continuous service  should be  understood  having  regard to  the  underlying  aim  and object;  (iii)  In  many  other  cases  the  University  has condoned similar breaks and refusal to do so in his case was arbitrary and discriminatory.                                               362      Dismissing the appeal, this Court,      HELD:  1.  The expression "continuous service"  has  no single  unalterable  meaning and its content  varies  having regard to the context. [368-C]      Jeevan  Lal Ltd. v. Its workmen, [1962] 1  S.C.R.  717; referred to.      "Words and Phrases" Vol. 9; referred to.      2.  The expression "eight years of continuous  service" in  para  2  (a) of the scheme should  be  understood  in  a reasonable  manner having regard to the underlying  aim  and object.  In understanding and construing the said expression the  object underlying the said requirement should be  taken into  consideration.   The object behind para 2 (a)  of  the scheme  is to ensure that a teacher does have  eight  years’ teaching experience. [366 F, H, 367-A]      2.1.Para  2  (a) of the Merit Promotion  Scheme  itself expressly recognizes that the eight years’ service may be in more  than  one institution, the only  requirement  being  a minimum of four years service in the institution where he is being considered for promotion under the scheme.  In case of shift  from one University to other or from one  institution

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to  the  other it can reasonably be presumed that  there  is bound to be some interval.  The interval may be of a day,  a week or a month.  What is relevant is not the length of  the interval  or  break, as it may be called,  but  its  nature. However,  the  length  of  such  interval  is  not   totally irrelevant; but one must take into consideration the  reason for  which break, or the circumstances in which such  break, has occurred. [366 F-H]      2.2  The  gap  in the respondent’s service  is  of  the nature contemplated by para 2 (a) of the scheme.  True it is that  it is a bit too long but even so in the light  of  the circumstance  that  the  respondent  was  reappointed  on  a permanent  basis,  on the very same post, in the  very  same department,  the  length  of  the  said  break  pales   into insignificance. [369 B-C]      3. It is also evident from record that in case of other two  teachers who had not completed eight years’ service  by the  prescribed date the Vice-Chancellor and  the  Executive Council  decided to extend the eligibility period  till  the date   of  interview  so  as  to  make  them  eligible   for consideration which shows that the University                                                      363 has been passing appropriate orders wherever the justice  of a  case  demanded.  The same treatment ought  to  have  been extended to the respondent, in all the circumstances of  the case. [370 E-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of 1988.      From  the  Judgment and Order dated 22.12.1987  of  the Allahabad  High Court in Civil Misc. Writ Petition No.  3396 of 1985.      M.L. Verma, L.R. Singh, Vikas Singh and Yunus Malik for the Appellants.      P.P.  Rao, T.N. Singh, B.M. Sharma and S.N.  Singh  for the Respondents.      The Judgment of the Court was delivered by      B.P  JEEVAN  REDDY, J. This Civil Appeal  is  preferred against  the judgment and order of a Division Bench  of  the Allahabad High Court allowing the writ petition filed by the respondent Dr. Indra Pratap Singh.      The  respondent  was  appointed as a  lecturer  by  the appellant-University,  on temporary basis, on  26.8.1974  in the  department  of  Basic Principles in  the  Institute  of Medical  Sciences.   His  appointment was  effective  for  a period  of eleven months.  At the end of eleven  months,  he was  reappointed on  the same basis for a further period  of eleven  months.   By  means of  such  appointments,  he  was continued  upto 31.3.1980.   There  was  no   re-appointment thereafter.  On 21.7.1980, the respondent was appointed as a Reader in Sri Ayurved College of the Nagpur University.   He worked  there till 20.9.1982. On 22.9.1982 he was  appointed as  a lecturer in the appellant-University in the very  same department,  on  a permanent basis.  On  this  occasion  his salary  was fixed giving him as many as fourteen  increments so as to protect his last drawn pay at Nagpur.      Banaras  Hindu University is a Central University.   It is  entirely  funded  by the  University  Grants  Commission (U.G.C.).   The  U.G.C. had evolved a scheme  called  ‘Merit Promotion  Scheme’  with a view to provide an  incentive  to teachers,  to prevent stagnation and also to  improve  their efficiency.   One  of the conditions which a  lecturer  must

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satisfy  before  he becomes entitled to promotion  is  eight years’  continuous  service.  Clause (a) of para  2  of  the Scheme which provides for the said qualification reads thus:                                                   364          "2(a).   Teacher  in  the  University   departments          engaged in advance teaching and research and  whose          contribution and achievements are such as to  merit          recognition must be considered for merit  promotion          in the first instance after completing eight  years          of continuous service in their respective cadre, of          which  at  least  four  years  should  be  in   the          institution  where he/she is being  considered  for          such assessment and merit promotion."      On  being selected under the Merit Promotion  Scheme  a lecturer  is designated as Reader and becomes entitled to  a higher pay scale.  The selection under this scheme has to be made by the University concerned no doubt in accordance with the criteria evolved by the U.G.C.      The  respondent applied for being selected  under  said scheme  in the year 1983.  The University, however,  was  of the  opinion  that he is not eligible for  being  considered inasmuch  as  he does not satisfy the requirement  of  eight years’  continuous service in the cadre.  The objection  was that  there was a break in his service between 1.4.1980  and 20.7.1980  (both  days  inclusive)  which  means  that   his continuous  service can be counted only from 21.7.1980.   If so  calculated, he does not satisfy the said requirement  by the  year 1983.  Another objection raised by the  University was  that  the  service rendered by the  respondent  in  the Nagpur University cannot be counted.  The respondent’s case, however,  was not only that his service at Nagpur is  liable to  be counted but that the university was competent to  and ought  to condone such breaks in service and that indeed  it has  condoned  such breaks in service in the case  of  other teachers.  Refusal to do so  in the case  of respondent,  it was submitted, was discriminatory and arbitrary.      In  view  of  the stand taken by  the  University,  the respondent  approached  the Allahabad High Court by  way  of Civil Miscellaneous Writ Petition No. 3396 of 1985.  At  his instance the High Court made an interim order directing  the University  to  place  the  petitioner’s  case  before   the Selection   Committee  (constituted  for  the   purpose   of selection under the said scheme).      According  to  the  counsel  for  the  University,  the respondent’s  case has accordingly been considered  and  the decision of the Selection Committee kept in a sealed  cover. The  matter  has not yet been placed  before  the  Executive Council  of the University which is the final  authority  in the matter of selection under the scheme, says the counsel.      The  High  Court has allowed the writ petition  on  the following reasoning:                                                 365 a  long-standing practice in vogue in the University  is  to condone  breaks in service in such cases. Refusal to condone the break in service in the case of the respondent, more  so when  he  was  given extra increments at  the  time  of  his permanent  appointment as a lecturer in this  University  in the  year 1982 (with a view to bring his salary on par  with the  salary  he  was  drawing as  a  reader  in  the  Nagpur University)  is not justified.  The service rendered by  the respondent  in  the Nagpur University is also liable  to  be counted towards the eight years’ continuous service.  Indeed para  2  (a) of the Scheme expressly recognizes  service  in more  than one University.  In as much as  the  respondent’s case has already been considered by the Selection  Committee

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in  pursuance of the interim orders, his case should now  be placed  before  the  Executive Council and if  he  is  found suitable he should be entitled to promotion/Selection  under the  scheme with effect from the same date from which  other teachers  of the University interviewed for the first  round of  promotion were appointed.  The operative portion of  the judgment reads thus:          "In  the result, the writ petition succeeds and  is          allowed.   The orders of the  University  rejecting          applications of the petitioner for condoning  break          in  service  and  for being  considered  for  merit          promotion are quashed.  The University is  directed          to  place  the  recommendation  of  the   Selection          Committee before the Executive Council in its  next          meeting.   It  is further directed to  appoint  the          petitioner on the post of reader in the  Department          of  Basic  Principles in the Institute  of  Medical          Sciences of the University, if he has been selected          for  promotion by the Selection Committee  and  its          recommendation   is  approved   by  the   Executive          Council  with effect from the same date from  which          other  teachers of the University  interviewed  for          first  round  of  promotions  were  appointed.   We          direct the parties to bear their own costs."      The  principal contention urged by the learned  counsel for the petitioner-University is that the Court was in error in holding that the respondent satisfied the requirement  of eight  years’  continuous  service.   The  counsel  did  not dispute the power of the University to condone short  breaks in service, but such power, he said, was exercised in  cases only  where  the  delays in re-appointment  were  caused  by procedural  delays in the office of the  University.   There has  been  no  case,  he  submitted,  where  the  University condoned  the  break  in service  of the  nature  concerned, herein.  The respondent left this University,  remained  out of  job  for a period of three months 20 days and  then  was appointed  as a Reader in the Nagpur University.  This is  a definite break in service  and such a break has                                                   366 never  been  condoned  by  the  University.   The   counsel, however, did not urge before us that the service rendered by the  respondent  in the Nagpur University should  not  count towards the eight years’ qualifying service.  On  the  other hand,  learned  counsel  for the  respondent  supported  the judgment of the High Court on the following reasoning:  Para 2 (a) of the scheme recognizes a teacher serving two or more Universities during the said period of eight years, the only requirement being that at least four years out of it  should be in  the  institution where he  is  being  considered  for promotion/selection  under the said scheme; the  requirement of  eight  years’  continuous  service  must  be  reasonably understood  having regard to the underlying aim and  object; where  a teacher serves two or more Universities during  the said  period, it can reasonably be presumed that there  will be breaks in his service, whether  the break is of a day,  a week,  a  month  or  a couple of  months,  it  is  unlikely- ordinarily  speaking-that  a teacher gets  re-employment  in another  University and joins there on the very next day  of his  being relieved from the first University.   The  object behind para 2 (a) of this scheme is to ensure that a teacher does  have eight years’ teaching experience.   Moreover,  in the case of this very respondent there were gaps of about  a week  or so on every occasion he was re-appointed  prior  to 1980;  the  University  never  treated  them  as  breaks  in service.Above all, at the time of his permanent  appointment

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in  the year 1982 he was given a large number of  increments both in view of his past service in the University and  also with a view to  protect his last pay drawn in the University at Nagpur.  In many other cases the University has  condoned similar  breaks of two to three months; refusal to do so  in the case of the respondent is arbitrary and discriminatory.      We  agree with the learned counsel for  the  respondent that  the  expression "eight  years of  continuous  service" in para 2  (a)  of  the scheme should  be  understood  in  a reasonable  manner having regard to the underlying aim   and object.   Para  2 (a) itself expressly recognizes  that  the eight  years’ service may be in more than  one  institution, the  only requirement being a minimum of four years  service in  the  institution  where  he  is  being  considered   for promotion  under  the  scheme.  In case of  shift  from  one University to other-or from one institution to the  other-it can  reasonably be presumed that there is bound to  be  some interval.  The interval may be of a day, a week or a  month. What is relevant is not the length of the interval or break, as it may be called, but its nature.  We do not mean to  say that length of such interval is totally irrelevant; what  we mean, however, is that one must take into consideration  the reason  for which break or the circumstances  in which  such break-has  occurred.   Another  factor  to  be  taken   into consideration  in  understanding  and  construing  the  said expression                                                       367 is the object underlying the said requirement.  According to us,   the  object  is  to  ensure  eight   years’   teaching experience.   It  is  true that there is a  break  of  three months  20  days in the respondent’s  service  and  teaching experience.   We also take note of the fact that it was  not the  vacation  time  for academic  institutions.   But  this circumstance  must  be  weighed  against  a  counter-vailing circumstance  in  favour  of the respondent  viz.,  his  re- appointment on a permanent basis in the very same department in  the  University in the year 1982.  As stated  above,  he served   as  a  temporary  lecturer  from   26.8.1974   till 31.3.1980.   From 1.4.1980 to 20.7.1980 remained  without  a job.   On  21.7.1980  he was appointed as a  Reader  in  the Nagpur  University-in the very same subject-where he  served till 20.9.1982.  On 22.9.82 he was appointed as a  permanent lecturer  in this very University and in the  same  category and  subject.   On  this occasion, he  was  granted  a  good number  of  increments.   The  University  says  that  these increments were granted with a view to protect his last  pay drawn  by him in the Nagpur University while the  respondent says  that it was granted not only for the said purpose  but also  in the light of his past service in  this  University. It is true that he was not given seniority since  26.8.1974. Even  so the question is whether the gap of three months  20 days is such a long gap as not to merit condonation- or  for that  matter to be termed as a break in service for purposes of para 2 (a) of the scheme.      In Jeevan Lal Limited  v. Its Workmen, [1962] 1  S.C.R. 717,   the   expression  "continuous   service"   fell   for consideration  of  this  court.   The  employee  joined  the appellant’s  service  as a workman in 1929 and  resigned  in 1957.   During  this  period he remained  absent  from  duty without permission or leave for nearly eight months  between February,  1945  to  October, 1945.   Under  an  award  made between  the employer and the workmen, a scheme  was  framed wherein   the  concerned  clause  was  that  "on   voluntary retirement or resignation of an employee after fifteen years continuous service, gratuity at the same rate as above"  was

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payable.   The question was whether  the  respondent-workman satisfied  the requirement of 15 years’ continuous  service. Gajendragadkar,  J. speaking for the Division Bench held  in favour of the workmen on the following reasoning:          "......there  can be no doubt that in  a  different          context    the  same  words  can  and  often   have          different meanings.  As this Court has observed  in          Budge  Budge Municipality v. P.R.  Mukherjee,  "the          same  words may mean one thing in one  context  and          another  in different context.  This is the  reason          why decisions on the meaning  of particular word or          collection  of words found in other   statutes  are          scarcely of much value when                                                       368          we have to deal with a specific statute of our own;          they may be helpful but cannot be  taken as  guides          or  precedents"......."Continuous service"  in  the          context  of  the scheme of gratuity framed  by  the          tribunal  in the earlier reference  postulates  the          continuance  of  the  relationship  of  master  and          servant between the employer and his employees.  If          the   servant   resigns  his   employment   service          automatically  comes  to an end.   If  an  employer          terminates  the service of his employee that  again          brings the continuity of service to an end.  If the          service of the employee is brought to an end by the          operation of any law that again is another instance          where  the  continuance  is disrupted;  but  it  is          difficult  to hold that merely because an  employee          is absent without obtaining leave that itself would          bring to an end the continuity of his service."      This  decision does emphasises the fact that  the  said expression  has no single unalterable meaning and  that  its content varies having regard to the context.          In "Words and Phrases" Vol.9,, the word "continuous          employment" is assigned the following meaning:          "It  means working with reasonable regularity,  and          work  does not cease to be "continuous" because  of          interruptions   in  occupation  due  to periods   of          temporary  illness, such as are incident to  people          of   normal   health.   "Continuously",   as   used          in regulations defining total permanent  disability          under  war  risk policy, does not  denote  absolute          continuity."      Again,  the  word  "continuous service"  is  given  the following meaning:          "Phrase  "continuous  service",  as  contained   in          collective  bargaining agreement, had to be  viewed          in  light of terms of agreement which provided  for          work schedule of eight hours per day for a five-day          week,  Monday to Friday, inclusive and,  therefore,          one  working  regular prescribed  hours  of  labour          would  be  rendering  "continuous  service"  within          agreement  even though not working on Saturdays  or          Sundays or more than eight hours in any 24."      The  above  two  meanings, among the  several  set  out therein,  are in our opinion contextually relevant.  We  are also  of the view that a literal interpretation of the  said words  is  ruled  out  by  the  context,  as  the  preceding discussion shows.      The  counsel  for the University has conceded  that  on several occasions                                                 369 prior  to  31.3.1980,  there were gaps of a week  or  so  in issuing  reappointment  order on temporary basis.   He  says

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that these delays were in the nature of ministerial  delays, and  therefore,  they were condoned but so far  as  the  gap between 1.4.1980 and 20-7-1980 is concerned he says it is of an  altogether different nature inasmuch as  the  respondent left this University and joined  another University.  But as we  have  stated hereinbefore, para 2 (a)  itself  expressly recognizes the said eight years’ service having been put  in more  than  one  University.  The present  gap  is  of  that nature.  True it is that it is a bit too long but even so in the  light  of  the circumstance  that  the  respondent  was reappointed on a permanent basis, on the very same post,  in the very same department, the length of the said break pales into  insignificance.  We are persuaded to believe that  the said  increments must have been granted taking into  account his  past  service  for  a  period  of  six  years  in  this University as well.      The  respondent  has  brought  to  our  notice  several instances  where the University has condoned breaks  of  two months  or more in the case of other teachers.  We  do  not, however,  think it necessary to examine those  cases  except two.  One Dr. L.K. Panda was a teacher in the department  of Ob.  and  Gyn. in the Institute of Medical Sciences of  this University.   He was appointed temporarily in 26.5.1973  and resigned on 5.2.1975.  He was said to be out of job  between 5.2.1975 and 27.4.1975 (for a period of two months 22 days). He  was  re-appointed as a lecturer in  this  University  on temporary  basis on 28.4.1975, and on a permanent  basis  on 16.10.1978.   The respondent’s case is that  the  University has condoned the said gap of two months 22 days in his  case and if so there is no reason why the gap on three months  20 days in the case of respondent should not be condoned.   The University has, however, explained in its counter  affidavit that  no such condonation was made in his case and that  his service was counted only from 28.4.1975.  But if his service is counted from 28.4.1975 only, it is significant to notice, he does not complete eight years service by 15.1.1983  which was  the  last day of  applying-vide  University  proceeding dated  11/21 December, 1982.  The other case is of Dr.  A.M. Tripathi  who was a teacher in the department of  Pediatrics in the Institute of Medical Sciences of this University.  He was  appointed temporarily on 11.5.1974.  According  to  the respondent,   he resigned on 12.8.1975 and  was out  of  job till 24.8.1975 when he went to Kabul.  According to him,  he served at Kabul in a non-teaching capacity from 25.8.1975 to 8.4.1976  and  he  was re-appointed as a  lecturer  in  this University on temporary basis on 9.4.1976 and made permanent on  9.2.1979.   The  respondent says  that  the  entire  gap between 12.8.1975 to 8.4.1976 was condoned by the University for considering his case under the scheme.  The  appellant’s case,  however, is different.  According to  the  appellant- University, he was sent to Kabul on                                                     370 deputation  and  that the break  in  his  service  occurring prior  to  his going to Kabul has never been  condoned.   We find that in the rejoinder-affidavit of the University filed in  this  court, there is a certain mix-up of  the  relevant dates in the case of these two teachers.  Be that as it may, its  case  appears to be  that services of  these  two  were counted   only from the date of their  re-employment.   Then the following significant statement occurs in the rejoinder- affidavit filed in this court:          "It is true that by 15.1.1983 he had not  completed          8  years of continuous service in the  same  cadre.          However,  in the meanwhile the  vice-chancellor  as          also the Executive Council decided that eligibility

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        period  of candidature for appointment to  teaching          posts under Merit Promotion Scheme be counted as on          the  date of interview, as per  existing   practice          for  regular appointments in view of the fact  that          the   Executive  Council  treats  posts   in   both          categories on a par  with each other.   Accordingly          since  Dr.  Tripathi  had  completed  8  years   of          continuous service in the same cadre by the date of          interview  on  23.6.1983, he was eligible  and  was          selected  by  the  statutory  Selection  Committee.          Applying   the  very  same  principal   which   was          approved by the Executive Council, Dr. L.K.  Pandey          became eligible  and was selected. "      In our opinion, the above  statement in the  rejoinder- affidavit  filed  by the University is very  revealing.   It shows  that  even  though  the said  two  teachers  had  not completed  eight years’ service by the prescribed date  i.e. by 15.1.1983, the Vice-chancellor and the Executive  Council decided  to extend the eligibility period till the  date  of interview so as to make them eligible for consideration.  We are not suggesting any malafides or any unreasonable conduct to  the  University.   All that we are saying  is  that  the University has been passing appropriate orders wherever  the justice  of  a  case demanded.  In  our  opinion,  the  same treatment ought to have been extended to the  respondent, in all the circumstances of the case.      For  the  above  reasons,  the  appeal   fails  and  is accordingly dismissed No orders as to costs. T.N.A.                                     Appeal dismissed.                                                     371