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Himachal Pradesh High Court · body

2014 DIGILAW 1144 (HP)

State of H. P. v. Satya Pal Sood

2014-08-27

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. The moot question in all these cases is as to whether the service rendered by a person in a privately managed institution prior to his induction in government service can be counted for the purpose of calculating 8 years of service for the grant of senior scale. The foundation of all these cases is the judgment passed by the learned Single Judge of this Court in CWP(T) No. 3125 of 2008 (OA No. 689/1996) decided on 12.5.2009 against which LPA No. 2 of 2010 has been preferred. The learned Single Judge therein has granted the aforesaid benefit by according the following reasoning: “The petitioner was initially appointed as college lecturer in Physics with Shri Vishnu Sanatan Dharam College, Bhatoli on 11.8.1980. The said institution was affiliated with Himachal Pradesh University and for all purposes for fixation of pay etc. was governed by the Rules and Regulations/calendar of the H.P. University. The services of the petitioner were availed by the respondent and he was given fresh appointment as Lecturer in Government College, Chamba w.e.f. 1.3.1986. There is no break of service. The petitioner has been successfully and satisfactorily discharging his duties. It appears that the issue of fixation of pay cropped up with the university and as such clarification was sought from the University Grants Commission, Delhi who vide letter dated 21.11.1990 clarified that for the purposes of senior scale/selection grade under the Career Development Scheme for Lecturer previous service, without any break as Lecturer should be counted for placement of Lecturer in senior scale/selection grade. It was pointed out that no distinction be made with reference to the nature of the management of the institution (private/local body/government), where previous services were rendered. It is not in dispute that the petitioner otherwise fulfills the criteria laid down in the said clarificatory letter. Hence for the purposes of according the benefits of Career Development Scheme petitioner’s past service is to be counted. Annexure P-3 to the effect that it awards senior scale/selection grade to the petitioner w.e.f. 1.3.1993 is quashed. Respondents are directed to pay to the petitioner, grade of Rs.3000- 5000 w.e.f. 10.8.1987 and selection grade of Rs.3700-5700 w.e.f. 11.8.1995. Arrears be released within a period of three months from today failing which, thereafter, he shall be entitled to interest 9%. Petition is disposed of with the aforesaid observations”. 2. Respondents are directed to pay to the petitioner, grade of Rs.3000- 5000 w.e.f. 10.8.1987 and selection grade of Rs.3700-5700 w.e.f. 11.8.1995. Arrears be released within a period of three months from today failing which, thereafter, he shall be entitled to interest 9%. Petition is disposed of with the aforesaid observations”. 2. It would be seen that in order to arrive at the aforesaid decision, the learned Single Judge has relied upon the letter issued by the UGC on 27.11.1990 (wrongly mentioned as 21.11.1990) and allowed the benefits on the basis of the so called clarificatory letter. 3. It appears that none of the parties to the lis brought to the notice of the learned Single Judge the judgment passed by a learned Division Bench of this Court in CWP No. 580 of 2001 titled as State of H.P. vs. Seema Bawa decided on 5.7.2007 wherein this Court after taking into consideration the clarificatory letter dated 27.11.1990 has taken a contrary view than the one taken by the learned Single Judge and held as follows: “Both the Original Applications were allowed by the learned Tribunal basically relying upon the instructions of the University Grants Commission (for short: UGC) dated 27.11.1990. Aggrieved against the said orders, the State has filed the present writ petitions. It would be pertinent to mention that the State of H.P. pursuant to the recommendations of the UGC and on the basis of the Punjab pattern was pleased to revise the pay scale of the college lecturers w.e.f. 16.11.1989. The senior scale of Rs. 3000-100-125-5000 was provided to the lecturers which was not existing prior to the said date. The notification provided that the lecturer and other staff working in affiliated nongovernmental colleges would also be given the pay scales as approved by the Government for the corresponding categories of the Government colleges. Condition No.5 forming part of Annexure-A to the said notification provides that college lecturers would be eligible for grant of senior scale of Rs. 3000- 5000 on completion of 8 years of service after regular appointment. The learned Tribunal has basically relied upon the memo dated 27.11.1990 which is a clarificatory memo issued by the UGC. Paras 1 and 2 of the said memo read as follows:- “1. 3000- 5000 on completion of 8 years of service after regular appointment. The learned Tribunal has basically relied upon the memo dated 27.11.1990 which is a clarificatory memo issued by the UGC. Paras 1 and 2 of the said memo read as follows:- “1. Previous service without any break as a Lecturer of equivalent in a university, college, national laboratory or other scientific organizations (CSIR, ICAR, DRDO, UGC etc) and as a UGC Research Scientist should be counted for placement of lecturers in Senior Scale/Selection Grade provided that:- a) the post was in an equivalent grade/scale of pay as the posts of a Lecturer; b) the qualifications for the post were not lower than the qualifications prescribed by UGC for the post of Lecturer; c) the Lecturers concerned possessed the minimum qualification prescribed by UGC for appointment as Lecturers; d) the post was filled in accordance with the prescribed selection procedure as laid down by the university/State Government; e) the appointment was not ad hoc or in a leave vacancy of less than one year duration; 2. No distinction should be made with reference to the nature of management of the institution where previous service was rendered (Private/local body/Government) if the above criteria are satisfied.” The learned Tribunal held that since the UGC has laid down that no distinction would be made with reference to the management of the institution where the previous service was rendered, therefore, the private respondents were entitled to count their services rendered in the private institutions. We have heard Mr. M.S. Chandel, learned Advocate General for the State- petitioner and Mr. Ashwani Kumar Sharma and Mr. Dushyant Dadhwal, learned counsel for the respondents. The main contention of the learned Advocate General is that the recommendations/memos of the UGC are not ipso facto applicable to the employees in the State. The State must adopt or accept the recommendations of the UGC. He submits that though the provision of pay scale as recommended by the UGC was accepted by the State Government and a specific notification in this behalf was issued on 16.11.1989, the subsequent memo of the UGC that while counting the period of 8 years, no distinction should be made between service rendered in privately managed institutions or Government run institutions has not been accepted by the State Government. On the other hand, learned counsel for the respondents submit that the directions of the UGC are applicable to them also and even otherwise no distinction should be made between the service rendered by the duly qualified lecturers who have been inducted as per norms laid down by the University in the private institutions and those selected by the H.P.PSC in the Government colleges. We have given our careful consideration to the entire case and also gone through the records and various decisions cited before us. Reliance has been placed by the private respondents on Sharadendu Bhushan v. Nagpur University, Nagpur & Ors, 1988 SC 335. In that case the Nagpur University as well as High Court of Bombay had not accepted the plea of the employee that the service rendered by him in a college affiliated to the Calcutta University should be counted while reckoning his service of 5 years. The apex Court in that case held that in terms of the criterion laid down by the University itself, a teacher is entitled to the benefit of the higher grade if he has the teaching experience of not less than five years. The decision of the Bombay High Court was set aside and the petitioner was held entitled to this benefit. The relevant clause in the said case reads as follows:- “Experience of university teaching upto degree classes for a period of five years”. The apex Court held that it was not necessary that the entire length of service should be in the Nagpur University itself. In the present case, the relevant clause is that the lecturer should have “completed 8 years of service after regular appointment.” We are of the considered view that the words ‘regular appointment’ in the present case must mean a regular appointment in Government service and not regular appointment in a private institution. The respondent have relied upon the decisions of the apex Court in University of Delhi v. Raj Singh and others, 1995 SC 336, Bhagalpur University Research Scholars Association and others v. State of Bihar and others, 1994, LAB. I.C. 2343 and Ramswaroop Meena and others v. University of Rajasthan and others, AIR 1997 Raj. 35. We are of the view that these judgments are not applicable to the facts of the present case. I.C. 2343 and Ramswaroop Meena and others v. University of Rajasthan and others, AIR 1997 Raj. 35. We are of the view that these judgments are not applicable to the facts of the present case. The law laid down in these judgments is that it is the UGC which alone can lay down the qualifications/guidelines required by a person to be appointed to the teaching staff of the university or institution affiliated to it. No doubt, under entry 66 of List I of Schedule VII to the Constitution of India, it is the Central Government which has the power to lay down the standards of higher education. However, this does not give power to the Central government to lay down the pay scales. The UGC has the power to lay down standards of qualification which should be held by the holder of any post in the university but it cannot lay down the pay scales. The recommendations which the UGC makes with regard to the pay scales are only recommendatory in nature. If the State Government accepts the recommendations of the UGC, then they become binding, but it is for the State Government to consider whether to adopt any particular recommendations of the UGC or not. In the present case the State accepted the recommendations of the UGC with regard to the pay scales. However, no material has been placed before us to show that any notification was issued accepting the recommendations/guidelines laid down by the University in the memo dated 27.11.1990. In fact, a perusal of this letter which has been annexed does not even show that it was ever issued to the government of H.P. There is no material before us to show that the recommendations of the UGC were ever accepted by the State. It has also been argued on behalf of the petitioner that no distinction can be made between the service rendered in private institutions and the service rendered in Government colleges and the distinction if made is arbitrary and illegal. This argument proceeds on the premise that qualifications for employment both in private and Government colleges affiliated to the university are the same and the same pay scale is granted to both. It may be true that the qualifications and the scales of pay both in private colleges and government colleges for the lecturers are the same. This argument proceeds on the premise that qualifications for employment both in private and Government colleges affiliated to the university are the same and the same pay scale is granted to both. It may be true that the qualifications and the scales of pay both in private colleges and government colleges for the lecturers are the same. However, we cannot lose sight of the fact that in India every person hankers for a government job. Lecturers in government colleges are appointed through the HPPSC. The selection is on a much wider scale and much more competitive. The competition for jobs in privately managed institutions is not to the same extent. Both the quantity and quality of candidates applying for government jobs are much higher than for privately run educational institutions. It may be that the respondents or other candidates like them who were working in privately managed educational institutions may have also applied for a government job through the HPPSC. The selection by the HPPSC is made on merit and meritorious candidates are selected. Persons who were serving in privately managed institutions may or may not be selected. Supposing a person with less or no experience is selected in a prior selection and a person having longer service in a private institution is selected in a later selection. After entering service, at a later stage, the persons like respondents cannot claim the benefit of the service rendered in the privately managed institutions as this will virtually amount to giving them a higher scale of pay than the persons who had been selected prior to them in a selection carried out by the HPPSC. Therefore, Article 14 is not attracted. The State as already observed above has adopted the rules which provide that 8 years of service after regular appointment is to be considered while granting senior scale. In our considered view the words “regular appointment” must relate to the appointment in the Government service and not the appointment in privately managed institutions.” And thereafter concluded and decided the question in the following manner: “In view of the above discussion, we are of the view that the service rendered by the respondents in privately managed institutions prior to their induction in government service cannot be counted for the purpose of calculating 8 years of service for grant of senior scale. The orders of the learned Tribunal in OA No.2525 of 1998 dated 14.12.2000 and OA No.2395 of 1999 dated 15.12.2000 are consequently set aside and the Original Applications filed by the respondents are dismissed. No costs.” 4. We are surprised to note as to why the decision of the learned Division Bench which admittedly was prior in time and otherwise binding was not brought to the notice of the learned Single Judge. 5. There is yet another reason for upholding the claim of the State. The lecturers of private colleges in Punjab had petitioned the High Court of Punjab and Haryana basing their case on the memo issued by the UGC on 27.11.1990 for claiming grant of selection grade/senior scale under the career advancement scheme for lecturers. They also prayed for counting the service rendered by them in the private college before joining Government College/a Department of University or a College run by the University for making up particular number of years of service required for grant of selection grade/senior scale. The petitioners therein had also joined the Government Colleges after resigning from private colleges. The High Court held the circular of the University to be binding on the Colleges and consequently the previous service rendered in the private colleges was ordered to be counted for the purpose of senior scale/ selection grade. 6. The matter was carried in appeal before the Hon’ble Supreme Court in Civil Appeal Nos. 4053-4054 of 1998 (Director of Public Instructions, Punjab vs. Mahesh Chander and others) came to be decided on 14.8.1998. The Hon’ble Supreme Court while reversing the aforesaid judgment held that the circular of the UGC had only been adopted by the University and not by the Government and, therefore, the petitioners on joining Government Colleges were not entitled to count their previous service rendered in the private college for purpose of grant of senior scale/selection grade. The Hon’ble Supreme Court held as follows: “In Paragraph 8 of the affidavit, it has been categorically stated that the clarification issued by the University Grants Commission dated 27th November, 1990 has to be considered (sic.) by the State Government for its implementation as the clarification issued by the University Grants Commission involves a financial burden on the State exchequer. The concurrence of the State for its implementation has to be sought. The concurrence of the State for its implementation has to be sought. Since State concurrence has not yet been given, the High Court was not right in granting to the respondents the benefit of the University Grants Commission letter dated 27.11.1990. The appeals are, therefore, allowed and the impugned judgment and order of the High Court is set aside. The writ petition filed before the High Court is dismissed.” Therefore, it can safely be concluded that the notifications issued by the UGC which involves financial burden on the State exchequer cannot be ipso facto applied unless such notifications are specifically adopted and accepted by the concerned State Government. 7. The cumulative effect of the aforesaid discussion is that the appeals filed by the State are allowed and the writ petitions which have been preferred only on the basis of the judgment passed by the learned Single Judge of this Court in CWP(T) No. 3125 of 2008 (OA No. 689/1996) are dismissed. An authenticated copy of this judgment be placed in all the connected files.