Non-Reportable

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

J U D G M E N T

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

schooling and 4 years of college.  The appointment of the appellant was

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

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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

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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

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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

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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 7th 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.

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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

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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

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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 the1 (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’.

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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’.

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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,

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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

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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

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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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