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2005 DIGILAW 140 (GAU)

State of Nagaland v. Kenneleisa Neikha

2005-02-17

AMITAVA ROY, D.BISWAS

body2005
JUDGMENT Amitava Roy, J. 1. Being aggrieved by the judgment and order dated 10.12.2002 passed by the learned Single Judge in W.P. (C) No. 53 (K) of 2002 directing grant of the benefits of 1996 UGC revised pay scales to the members of the Kohima College Teachers Association (hereinafter referred to as Association) the State is in appeal before us. 2. We have heard Ms. T. Khro, learned Govt. Advocate, Nagaland for the Appellant and Mr. R.P. Sarmah, learned Senior Advocate for the Association. 3. A fascicule of facts leading to the filling of the writ petition would be necessary. 4. The Kohima College (hereinafter referred to as the College) established in the year 1967 was initially affiliated to the Gauhati University. In course of time it received affiliation from the North Eastern Hill University, Shillong and is presently so to the Nagaland University. It is a private college under the scheme of Grants in aid from the State Government and claims to be only private college recommended under Section 2(f) of the University Grants Commission Act, 1956 (hereinafter referred to as the Act) in the State of Nagaland. The UGC scales of pay were introduced in the college in 1976 following acceptance of the offer of the Government of Nagaland to the said effect by the Governing Body of the college. The benefit of the revised UGC pay scales occasioned in 1986 was also extended to the college along with other eligible colleges in the State. By the impugned Notification dated 29.9.1999 however, the revised UGC pay scales were extended only to the Government colleges in the State with effect from 1.1.1996. A representation ventilating the grievance of the members of the Association against the above decision of the Government having failed to evoke any response, the extraordinary jurisdiction of this Court was sought to be invoked. 5. The State Respondents have denied the Association's claim that the college is recognized under Section 2(f) of the Act. It has been admitted that the UGC pay scales were released to four colleges including Kohima college in the year 1976 and that the revised UGC pay scales were also accorded to it in the year 1986. According to them in 1996 the other three colleges were taken over by the Government. It has been admitted that the UGC pay scales were released to four colleges including Kohima college in the year 1976 and that the revised UGC pay scales were also accorded to it in the year 1986. According to them in 1996 the other three colleges were taken over by the Government. While admitting that the UGC scales of pay were extended to the private colleges in the State in the year 1976 in the interest of upliftment of education, it has been pleaded that with the increase in the number of private colleges thereafter, it was not feasible, having regard to the financial resources of the State to extend the revised UGC pay scales to all the private colleges. The answering Respondents have also sought to justify the impugned action contending that on the criteria of recruitment procedure and service conditions as well, the Government colleges and private colleges cannot be treated at par. The failure on the part of the college management to conform to the UGC norms in the matter of appointment of teachers and payment of financial benefits is also alleged. 6. The learned Single Judge on a consideration of the pleaded facts and the supporting documents as well as the relevant provisions of the Act and the University Grants Commission (Fitness of Universities for Grants) Rules, 1975 (hereinafter referred to as the Rules) determined the impugned decision to be discriminatory and consequently directed the State Respondents to grant the benefits of 1996 UGC revised pay scales to the members of the Petitioner Association, making it clear however, that the said entitlements would not be available to the other private colleges not granted the UGC scales of pay earlier. 7. The learned State Counsel argued that as the three other colleges earlier sanctioned the UGC revised pay scales along with Kohima college had, in the meantime been taken over by the Government and are Government colleges, they cannot by any means be equated with the Kohima college which is a private college and therefore there being a valid basis of classification, the impugned decision cannot be branded as illegal, unfair or discriminatory. If in the prevailing circumstances, the 1996 revised UGC pay scales are to be provided to the college, the State would then be obliged to provide the same benefit to the other private colleges, several in number, resulting in heavy drain in the State exchequer which having regard to the present financial resources of the State is impermissible. 8. As against this, Mr. Sarmah has urged that the college having been granted the UGC scales of pay being ascertained to be entitled thereto under the Act and the relevant Rules and Regulations framed thereunder, the impugned action of the State Respondents in denying the same benefit to the college while continuing it with the other three colleges is ex facie arbitrary, unreasonable and discriminatory as has been rightly held by the learned Single Judge. He maintained that the college having been provided with the UGC pay scales along with the three other colleges taken over by the Government, the classification presently sought to be made is imaginary inasmuch as the entitlement to the UGC revised pay scales cannot be guided only by the category of the college, the conditions of eligibility prescribed under the Act, Rules and Regulations notwithstanding. According to him, there is no existing basis of the purported classification between the Kohima college and other three colleges and therefore the impugned action has the effect of introducing a hostile discrimination between similarly situated colleges rendering the same unconstitutional. He asserted that the plea of failing financial resources of the State and the specious ground that all private colleges would have to be extended the similar benefit is plainly untenable inasmuch the entitlement to the UGC pay scales is essentially conditioned by the norms of eligibility prescribed by the Act, Rules and the Regulations. There being no material on record that the other private colleges in the State are similarly entitled to the revised UGC scales of pay, the above plea is imaginary, he urged. In support of his submissions, Mr. Sarmah placed reliance on the following decisions: (i) Haryana State Adhyapak Sangh and other v. State of Haryana and other, 1988 4 SCC 571 (ii) K. Krishnamacharyulu and other v. Sri. Venkateswara Hindu College of Engineering and another, AIR 1998 SC 295 (iii) Francis John v. Director of Education and other, AIR 1990 SC 423 (iv) Dr. Mrinal Kanti Bhowmik v. Dr. Venkateswara Hindu College of Engineering and another, AIR 1998 SC 295 (iii) Francis John v. Director of Education and other, AIR 1990 SC 423 (iv) Dr. Mrinal Kanti Bhowmik v. Dr. (Mrs.) II Lodh and other, 2000 2 GLR 372 9. The undisputed facts may first be recapitulated. The Kohima college is a private college, but not accepted by the State Respondents to be recognized as contemplated under Section 2(f) of the Act. The college was extended the benefit of UGC scales of pay since 1976 followed by the revision thereof in 1986. The impugned notification has restricted the benefit of 1996 revised pay scales only to the Government colleges in the State. No reason as such is available therein for excluding the college, more particularly, when admittedly it had been sanctioned the UGC scales of pay for over two decades. 10. From the notification dated 23.11.1976 whereby the scheme of UGC scales of pay was introduced for the college teachers of the State it is evident that the same was extended to the colleges affiliated to the North Eastern Hill University as recommended by the University Grants Commission. An option was offered which was exercised on behalf of the college through its Governing body in favour of implementation of the scheme. By notification dated 31.10.87 as well the revised UGC scales of pay were sanctioned to the colleges in the State affiliated to the North Eastern Hill University. At no point of time any distinction was made between the existing colleges. 11. It would be apt at this stage to notice the relevant provisions of the Act, Rules and the Recognition of College in Terms of Regulations 1974 (hereinafter referred to as the Regulations). UNIVERSITY GRANTS COMMISSION ACT, 1956. Section 2(f)-University means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act. 12. A(1)-In this Section.... UNIVERSITY GRANTS COMMISSION ACT, 1956. Section 2(f)-University means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act. 12. A(1)-In this Section.... (b) College means any institution, whether known as such or by any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance with the rules and regulations of such university, is recognized as competent to provide for such course of study for the examination for the award of such qualifications. 13. UNIVERSITY GRANTS COMMISSION (FITNESS OF UNIVERSITIES FOR GRANTS) RULES, 1975. 2. FITNESS FOR GRANT No institution to which these rules shall be declared to be fit to receive grants from the Central Government, the Commission or any other organization receiving any fund from the Central Government unless the Commission is satisfied that the institution: (i) Provides instruction upto a Bachelor's degree or up to a post graduate degree only or provides instructions for diploma course of duration of not less than one academic year and for which the minimum qualification for admission is a Bachelor's degree; (ii) Is registered as a society under the Societies Registration Act, 1860 (21 of 1860) or is a body corporate established or incorporated under a Central Act, a provincial Act or a State Act, for the time being in force or is a Trust with Trustees being appointed and vested with legal powers and duties; and (iii) Is permanently affiliated to a University which has been declared fit under Section 12-B of the University Grants Commission Act, 1956 (3 of 1956) for receiving grants. 14. RECOGNITION OF COLLEGE IN TERMS OF REGULATIONS 1974 FRAMED UNDER THE UGC ACT. RECOGNITION OF INSTITUTION 1. 14. RECOGNITION OF COLLEGE IN TERMS OF REGULATIONS 1974 FRAMED UNDER THE UGC ACT. RECOGNITION OF INSTITUTION 1. The Commission may, in consultation with the University concerned recognize an institution under Clause (f) of Section 2 of the UGC Act, 1956, if: (i) It is affiliated to, or forms as constituent member of, or is ran directly as a University college by or is an institution recognized by a university established or incorporated by or under a Central Act, a Provincial Act or a State Act and the Statutes and Regulations made thereunder or ran by Government or local authority. (ii) It provides instructions upto a Bachelor's degree or up to a postgraduate degree or for a post-graduate degree only or provides instruction for a Diploma course of a duration of not less than one academic year and for which the minimum qualification for admission is a Bachelor's degree; and (iii) It is registered as a society under the Societies Registration Act, 1860 (21 or 1860) or is a body corporate, established or incorporated under a Central or State Act, for time being in force or is a Trust with trustees being appointed and vested with legal powers and duties: Provided that the requirements of this clause shall not apply in the case of an Institution run by the Government or a local authority or any University. (iv) In relation to such institution, where it does not fall within Clause (iii) a bond is executed by the registered society or trust by which it is managed or run guaranteeing the proper utilization of the grants that might be paid by the Commission to the institutions and agreeing to refund such part of the grant as may not have been properly utilized for the purpose of the institution and also agreeing to furnish to the Commission the balance sheet of the registered society or trust, as the case may be along with the annual accounts of each of the institutions managed or run by the registered society or trust. 15. The above provisions unequivocally proclaim that no institution would be entitled to receive any grants from the Central Government, Commission or any other organization receiving any funds from the Central Government unless the Commission is satisfied on the touchstone of the above criteria that such institution is eligible therefor. 15. The above provisions unequivocally proclaim that no institution would be entitled to receive any grants from the Central Government, Commission or any other organization receiving any funds from the Central Government unless the Commission is satisfied on the touchstone of the above criteria that such institution is eligible therefor. In other words, no grant as above is automatically extendable to any institution even if it does not satisfy the prescribed conditions of eligibility and fitness. 16. This assumes importance in view of undisputed factual position that the State of Nagaland had provided the UGC scales of pay to the college since the year 1976 in terms of the recommendations of the Commission. The irresistible conclusion therefore is that the college conforms to the qualifying precepts of the Act, Rules and the Regulations to be entitled to receive the UGC scales of pay and the recurring revisions thereof. It is noticeable that the Act, Rules and the Regulations do not comprehend any differentiation between the Government and the non-Governmental institutions or colleges. The decisive criteria is compliance with the conditions of eligibility and fitness prescribed. No other consideration is either contemplated or countenanced. In that view of the matter, the plea of disparity between the Government colleges and the private colleges raised to justify the impugned action does not appeal to us. The learned State counsel, we may record, could not otherwise demonstrate before us as to if the college had failed to comply with any guidelines or norms of the Commission or any other authority so as to disqualify itself from being accorded the 1996 revised UGC scales of pay. 17. The stand that if the college is sanctioned the benefit of 1996 revised UGC scales of pay, all other private colleges would follow suit and would have to be favoured with the same benefit, is to be noted only to be rejected. As noticed hereinabove, compliance with the eligibility norms as ordained being the essential precondition, it is idle to contend that extension of the benefit of 1996 revised UGC pay scales to the college would automatically entitle the other private colleges therefor. No such analogy can be rationally drawn in absence of any material on record to the effect that the other private colleges also are entitled under the Act, Rules and Regulations for such grant. No such analogy can be rationally drawn in absence of any material on record to the effect that the other private colleges also are entitled under the Act, Rules and Regulations for such grant. Indeed, the learned State counsel has not been able to invite our attention to any data that the other private colleges in between have also been extended the UGC scales of pay being found to be entitled therefor. The plea of failing financial condition of the State in the above premises therefore cannot be a relevant consideration. All the four colleges to which the UGC scales of pay had been sanctioned having been treated at par for all these years, in absence of any relevant or intelligible basis of classification, the impugned decision on the available materials on record cannot be sustained. The contention pertaining to the recruitment procedure and the conditions of service vis-a-vis two categories of colleges in the above factual backdrop is of no significance and therefore is of no assistance to the. State Respondents. The State of Nagaland having extended the benefits of UGC scales of pay to the college after due consideration of all relevant aspects, it is not permissible in law to withdraw the same from the college in absence of any legally acceptable and convincing consideration. The facts and circumstances do not disclose any. 18. The Apex Court in K. Krishnamacharyulu and other (supra) while dealing with the claim of the employees of private educational institutions for parity of pay with that of the Government employees held that when there is an interest created by the Government in an Institution to impart education, which is a fundamental right of the citizens, the teachers who impart education bear an element of public interest in the performance of their duties enabling them to have their conditions of service regulated at par with the Government employees. It was held that the private institutions cater to the needs of the educational opportunities and a teacher duly appointed to a post in such an institution is entitled to seek enforcement of the orders issued by the Government. This decision presents a complete reply to the plea of distinction between the Government and non-Government institutions raised on behalf of State Respondents, in the existing factual setting. 19. This Court in Dr. This decision presents a complete reply to the plea of distinction between the Government and non-Government institutions raised on behalf of State Respondents, in the existing factual setting. 19. This Court in Dr. Mrinal Kanti Bhowmik (supra) has held that in absence of strong and compelling reasons, the determination of a single Judge ought not to be interfered with in appeal. 20. We have closely scrutinized the reasonings of the learned Single Judge and find ourselves in complete agreement therewith. 21. In view of the above, we do not find any merit in the appeal and it is accordingly dismissed. No costs. Appeal dismissed.