Ahalya A. Samtaney vs The State Of Maharashtra

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.__8292_ of 2018 [Arising out of SLP(C) No.25448/2017]

AHALYA A. SAMTANEY ….APPELLANT

Versus

THE STATE OF MAHARASHTRA & ORS. ….RESPONDENTS

JUDGMENT

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The appellant obtained a Post Graduate degree (M.A.) and

thereafter completed her Bachelor of Education (B.Ed.). She was

appointed as a tutor of English in the H.R. College of Commerce and

Economics, Mumbai (respondent No.6), in which position she carried on

her professional duties from 15.12.1974 to 31.7.75 in the grade pay-scale

of Rs.250-15-400. The then existing pattern of education was of 10 years

Signature Not Verified schooling and 4 years of college. The appointment of the appellant was Digitally signed by NARENDRA PRASAD Date: 2018.08.17 16:58:02 IST Reason: approved by the University of Mumbai (respondent No.4) on 15.5.1975. 1

3. The appellant continued to work as a tutor in English till

31.7.1975, when she was promoted as a Lecturer of English in the Senior

College w.e.f. 1.8.1975. The appellant continued to work in that capacity

up to 30.9.1976 in the revised grade pay-scale of Rs.700-50-1600.

4. A new pattern of education was introduced from June, 1976 under

the pattern of 10+2+3, as a consequence of which the appellant was

rendered fully surplus in the senior college. The Government of

Maharashtra (respondent No.1) conscious of such consequences, laid

down certain guidelines for absorption of the lecturers rendered surplus

due to the new 10+2+3 pattern vide the Government Resolution No.

HSC.1076/419-XX-XXI dated 11th June 1976. It is in view of these

guidelines that the appellant was appointed as a full time teacher in

English now in the junior college w.e.f. 1.10.1976, in the pay-scale of

Rs.500-900 instead of Rs.700-50-1600.

5. It is on 3.6.1977 that the appellant took up the issue of her re-

appointment as a full time lecturer in college in view of the fact that she

had been working for two years with respondent No.6 College and in

response thereto on 14.6.1977, the Principal of the College informed the

2 appellant that the college was appointing her as a full time lecturer of

English in the junior college and that her salary would remain the same.

6. The Government of Maharashtra by Resolution dated 25.10.1977

sought to revise the pay-scales of University and School teachers

retrospectively from 1.1.1973. The consequence of this for the appellant

was that her salary was revised to Rs.700-50-1600 from 1.8.1975, i.e.,

the date of her promotion as a lecturer in the senior college.

7. The other developments which took place were that by the order

dated 19.6.1978, the Principal of the College appointed her as a full time

Lecturer in the Junior College and thereafter allowing her to contribute to

the Provident Fund. The College informed the Joint Director of Higher

Education that they were desirous of absorbing the appellant in the

Degree College w.e.f. 1.1.1994 and to fix her pay in the scale of Rs.2200-

4000 from 1.12.1993. This absorption was approved by the University

by the order dated 31.1.1994. There were certain other communications

also exchanged in the same direction.

8. The appellant sought regularisation of her pay-scale, a grievance,

which was not redressed, which resulted in her filing writ petition

No.1840/1998, before the Bombay High Court. The gravamen of the

3 case of the appellant in the High Court was that the appellant was

squarely covered by a Government Resolution dated 11.6.1976, which

dealt with cases like those of the appellant being rendered surplus. Since

the appellant was appointed as a full time teacher of English in Junior

College w.e.f. 1.10.1976, the appellant claimed protection of her pay.

9. It is the case of the appellant that the appendix to the Government

Resolution of 11.6.1976 contains the guidelines for absorption of

teachers determined as surplus at college levels. The appendix has a

number of clauses, but what is germane for the present controversy is

clause No.(iii) on which reliance is placed by the appellant and reads as

under:

“(iii) College teachers who were in service on or before 7 th February, 1975 and were also in continuous service upto the end of the academic year 1975-76 in a college or colleges under the same management but had not completed two years of continuous service upto the end of academic year 1975-76;”

10. The case of the appellant is based on her being in service on or

before 7.2.1975, as she was working with the college as a tutor from

15.12.1974 and that she continued her service up to the academic year

1975-76 in the college, but could not complete two years of continuous

service by then, on account of the new pattern of education. There was a

4 simultaneous declaration of the appellant as surplus on 29.9.1976, with

her appointment as a full time teacher in the Junior College w.e.f.

1.10.1976. In terms of the Government resolutions, the appellant

claimed pay-scale of Rs.700-1600. She claimed placement in this pay-

scale from 1.8.1975 in view of the pay-scale existing for Senior Lecturer

and Lecturer (junior scale), which were revised. She, thus, also claimed

entitlement to all consequential arrears on account of re-fixation of pay.

The defence of the respondents is based on the alleged non-continuous

service on account of her termination on 30.9.1976 with her re-

appointment in the junior college w.e.f. 1.10.1976. Thus, it was claimed

that the appellant is not covered by clause (iii) having worked as a tutor

till 31.7.1975 and being appointed as a Lecturer in the senior college only

w.e.f. 1.8.1975.

11. The reasoning advanced on behalf of the respondents found favour

with the High Court, which dismissed the writ petition by the order dated

24.7.2017. What weighed with the High Court was the fact that the

initial appointment of the appellant was as a tutor of English in the senior

college and the appointment was approved by the University as such.

Thus, she was working as a tutor on or before 7.2.1975 and the case of

5 college ‘tutors’ was to be considered in accordance with clauses (iv) &

(v) of the Guidelines, which read as under:

“(iv) College tutors/Demonstrators and persons in equivalent grade (Rs.250-400) F.T. who were either confirmed in clear vacancies or who had been completed two years of service in clear vacancies in a college or colleges under the same management on or before 7 th February 1975 and who fulfil the qualifications prescribed by the University concerned for appointment as lecturers and are, therefore, entitled to deemed date of 1st July 1975;

(v) College tutors/demonstrators and persons in equivalent grade (Rs.250-400) who were either confirmed in clear vacancies or who had completed two years of service in clear vacancies in a college or colleges under the same management on or before 7 th February, 1975 but who do not fulfil the qualifications prescribed by the University concerned for appointment as lecturers.”

12. The conclusion reached was that clause (iii) of the Guidelines and

the consequent revision of scales prescribed are applicable to those alone

who are working as senior lecturers/lecturers covered by the said clause,

while the appellant was not working in that capacity on that cut-off date,

but became a lecturer only from a subsequent date. The appellant, before

the cut off date of 7.2.1975, was only working as a tutor in the senior

college.

13. We may note that delay and laches has also been found to be an

additional obstruction in the way of the appellant as the pay-scale was

fixed in the year 1976 while the petition was filed in the year 1998.

6 14. Learned counsel for the respondent endeavoured to support the

impugned judgment by emphasising that clause No.(iii) would have no

application in the facts of the present case as the services of the appellant

were terminated on 30.9.1976 with her re-appointment in the junior

college w.e.f. 1.10.1976. On the other hand, learned counsel for the

appellant sought to claim relief on a divergent reasoning based on a

Government Resolution dated 27.11.1991, which though finds a mention

in the writ petition, appears not to have been the fulcrum of the

endeavour to get relief for the appellant, before the High Court. Reliance

upon this Government Resolution of 1991 is also apparent from the

written synopsis filed on behalf of the appellant.

15. It was sought to be contended before us, by learned counsel for the

appellant that the relevant resolution, which could assist the appellant in

getting relief is in fact this Government Resolution dated 27.11.1991.

This is so as the appellant was working under the old pattern of 10+4 in

the senior college, but for no fault of hers, on account of change in the

education pattern to 10+2+3, she was rendered “fully surplus” in the

degree college in June, 1976. As a consequence of the same, the services

7 of the appellant were terminated from the senior college by the letter

dated 29.9.1976, but came along with an almost simultaneous/immediate

transfer in the junior college with effect from 1.10.1976. It is also

relevant to note that the appointment letter records that the salary of the

appellant shall remain the same. However, when the appellant joined the

junior college from 1.10.1976 she was given the pay-scale of Rs.500-900

instead of Rs.700-1600. This was so, as under the Resolution dated

11.6.1976, extracted partly aforesaid, the appellant would not fit in any of

the categories of P-1 to P-5. The appellant, being a tutor on the cut-off

date of 7.2.1975, would not fall in categories P-1 to P-3, while though a

tutor was covered under categories P-4 and P-5, she did not meet the

requisite parameters thereof. It was for the benefit of such persons like

the appellant, who did not fit in any of the categories, that the same were

declared as “rest category” in the Government of Maharashtra Resolution

dated 27.11.1991, and were accordingly given the benefit of the pay-

scale of Rs.700-1600 from their initial appointment date in the senior

college. The resolution dated 27.11.1991 is reproduced hereunder:

“EXHIBIT – III 27.11.1991

Government Resolution-The new education system (Program) of 10+2+3 has started in the year 1975-76 in the 8 Maharashtra state. In order to absorb some surplus teachers in service as per the guidelines of the Government these (teachers) were divided into five categories and as per the guidelines they were labelled on P-1, P-2, P-3, P-4 and P-5.

The teachers belonging to P-1 category were recognized (teachers) and were in service before 7.2.1975. Therefore as per the Government policy they were absorbed in pay scale of Rs.700- 1200. The teacher in P-1 category included tutor demonstrator, Method Masters and they were in service on 7.2.1975. However as per the rules of University they were not having teacher’s qualification.

Subsequent to the implementation of the new educational pattern, some teachers joined the senior college after 7.2.1975. Since these teachers were not included in the above referred categories they were considered in remaining or Rest Category teachers.

As the new educational pattern was implemented from the year 1975-76, these rest Category teachers who had become surplus were absorbed in Junior college so that they would not the 1 (sic) rendered jobless. Since these teachers were not from the above referred five categories they were given a pay scale of Rs.500-900 in Junior college instead of pay scale of Rs.700-1600. A five Member Committee appointed under the Chairmanship of Department of Higher Education to study the question of protecting the pay scale of Rest Category teachers in pay scale of Rs.700-1600 who had been rendered surplus because of the implementation of the new educational pattern, had recommended the protection of scale for that Category teachers. The question of giving such scale of Rs.700-1600 to Rest category teachers was therefore under consideration of Government.

The Government therefore resolved that subject to the conditions mentioned hereafter the teachers who have been

1 To be read as ‘be’.

9 rendered surplus in Senior Colleges and have been absorbed in Junior College, because of the new educational pattern, be given the protection of pay scale of Rs.700-1600 from their earlier appointed in Senior Colleges.

1. Their appointment should be in the clear vacancy in the scale of Rs.700-1600.

2. They have been rendered surplus due to implementation of 10+2+3 pattern.

3. They having been rendered surplus in this manner, have been immediately absorbed in the junior college of the same management.

4. They (said teacher) have continued in the Senior College of the management if vacancy, senior college in pay scale of Rs.700-1600 has not been available for their absorption.

5. Their service has not been terminated by the management.

6. They just2 (sic) not have tendered their resignations.

Date: 27.11.1991”

16. There is really no dispute that the appellant falls in the “rest

category”. This is inter alia acknowledged in the letter of the Principal

of the College dated 16.11.1993 noticing that but for the loss of workload

in the degree college she would have been working in the senior college

but had to be re-appointed in the junior college. Once again in the letter

dated 16.11.1993 addressed by the College to the University it is 2 To be read as ‘must’.

10 categorically stated that the appellant falls in the “rest category”. The

only ground on which the Government refuses to consider her in the “rest

category”, is the absence of continuous employment and for no other

reason. Her termination and re-appointment is being used against her.

Para 5 of the counter affidavit before us is quite clear on this aspect. The

one day gap arising from the letter dated 29.9.1976 informing the

appellant that she would be joining on 1.10.1976 in the junior college as

she was declared surplus in the senior college from 29.9.1976 is, thus,

sought to be put against her. The letter dated 16.11.1993 may usefully be

referred to for this purpose, which reads as under:

“I have to state that Mrs. A.A. Samtaney REST category teachers the Degree College was transferred to the Junior College for want of work- load as per the above orders she is to be absorbed as Lecturer in the Degree College, in the Vacancy be filled in now, the particulars are as below:

(1) Mrs. A.A. Samtaney was working as Tutor in English from 16.12.1974 to 14.3.1975, she was again appointed as Tutor in English from 15.7.1975, but was promoted as Lecturer in English from 1.8.1975. She would have continued as Lecturer in English during the academic year 1975-76, but for the loss work-load in the Degree College, she was transferred to the Junior College, with effect from 1.10.1976. She is working in the Junior College till today.”

17. The aforesaid, thus, buttresses the claim of the appellant that she

had been in continuous service, but for this artificial break of one day,

11 arising from the change in curriculum. This position continued till

31.12.1993 when she was transferred to the senior college in view of the

vacancy arising from the retirement of one Mrs. K.I. Sippy on

31.12.1993. The appellant continued to work in that capacity till

September, 2011 when she retired from service, receiving pension.

18. It is also relevant to note that pension is granted only if there is 20

years of continuous service, thus, the grant of pension itself also supports

the continuation of service of the appellant.

19. We have to really, thus, only examine as to what is the effect of

this artificial break of one day, which was given to the appellant, as

otherwise the appellant is fully covered and is entitled to the benefit

under the Resolution dated 27.11.1991.

20. We really do not have to labour much on this aspect as the High

Court of Bombay itself had an occasion to examine the same in Writ

Petition No.2903/1989 titled Professor Pervez H. Lentin v. The

Principal St. Xavier’s College & Ors. decided on 17.2.2005. In a sense

this is also an identical case of an artificial break arising from the change

in the education pattern. We may usefully extract para 16 of the said

judgment as under:

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“16. The petitioner was undoubtedly in continuous service. Indeed, what is termed as a break was at the highest an artificial break. From the correspondence referred to above, it appears to us clear that there in fact was not even an artificial break, for the re-appointments were from the very next date. However, even assuming that the same in the Petitioner’s case amounted to an artificial break, the Petitioner is adequately safeguarded by the circulars/resolutions issued by the Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the Government recorded the fact that it had considered the representations made to it regarding such breaks; that it was observed that in most of the cases services of the teachers in junior colleges were terminated at the end of every academic year and they were appointed for the next academic year without benefit of continuous service and that it had further been represented to Government that such teachers should get the status of confirmed teachers if they had put in, in all, 24 months service even though it was not continuous due to the breaks given by the managements of the Non-Government Junior Colleges. It was observed that such practice had resulted in a sense of insecurity amongst the employees and deprived them of benefits of continuous service. It was therefore directed that a total of 24 months service in the same institution over-looking the break in service, should qualify junior college teachers to be treated as substantive subject to certain conditions. The petitioner admittedly complied with all such conditions. Thereafter, by a further resolution dated 26.2.1981 this resolution was extended mutatis mutandis. The same was so far as it related to the counting of break periods towards completion of probation period of 24 months in respect of teachers of Non-Government Junior Colleges to the teachers of Non- Government Senior Colleges in the State as well. ”

21. We are in complete agreement with the approach adopted by the

High Court in the aforesaid judgment of deprecating such artificial

breaks to deny the benefit to an employee, more so a teacher. We cannot

lose sight of the fact that security of tenure for a teacher, who dedicates

13 her life for education of the students, is of utmost importance. Insecurity

should not be created in the employment of such lecturers or teachers,

more so when they are through a process of really a subterfuge of giving

artificial breaks. Another plus point is that this artificial break is also the

result of a change in the educational curriculum. It is really a matter of

internal adjustment arising from the change in curriculum and the

appellant has been in continuous service for two decades, but for this one

day break. This is how it has been really understood by the college and

by the State Government, as they have given pension to her which is

admissible after 20 years of service.

22. We are also of the view that this issue has been receiving attention

and has been agitated before different authorities and the alleged delay in

filing the writ petition cannot stand in the way of the appellant getting the

benefit for services. The relevant pay-scale will entitle her to the

emoluments which were admissible to her for work already performed.

23. We, thus, unhesitatingly conclude that the appellant is entitled to

be treated in the pay-scale of Rs.700-1600 and is entitled to all the

benefits of the Resolution dated 27.11.1991.

24. We, thus, direct the respondents to calculate the emoluments due to

14 the appellant in the aforesaid terms within a period of three months from

today and remit the same to her within the same period of time. In the

peculiar facts, we are not granting any past interest in this case, but in

case of any delay beyond three months, interest would be admissible on

the amounts due and payable to the appellant @ 12 per cent per annum,

simple interest.

25. The appeal is accordingly allowed leaving the parties to bear their

own costs.

..….….…………………….J. [Kurian Joseph]

...……………………………J. [Sanjay Kishan Kaul] New Delhi.

August 16, 2018.

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