All Manipur Government College Teachers Association and Principal, P.G.T. College vs The State of Manipur and Others

H.K. Sema, J.—On 30-10-93, there to an order by Hon''ble Smt. Justice Meera Sharma to list this case before the Division Bench. However, considering the facts that this writ petition is spending since 1982 and there is not a very likehood of the constitution of the Division Bench in this Bench in the near future and there is an urgency in this petition, I propose to take up this case sitting singly.

This writ petition was preferred by the members of All Manipur Government College Teachers Association, represented by its President (hereinafter the Association). In this writ petition the taking over of the Private Colleges and the validity of the Manipur Civil Service (Appointment and other service conditions of Employees of the Government Aided/Private Institution taken over by the Government) Rules, 1981, particularly, virus of Rule 7 of the said Rules has been challenged.

The facts giving rise to this present petition may be briefly stated. Prior to the taking over of the Private/Government Aided Colleges, there was only 4 (four) Government Colleges in the State of Manipur. They were D.M. College of Science, D.M. College of Arts and Commerce, P.G.T. College and G.P. College. The service conditions of the teachers in the Government Colleges were regulated by the recruitment rules. The teachers in Government Colleges were recruited under the Recruitment Rules from among the lecturers who had at least 3 years teaching experience at any Collage. Further the teachers in the Government Colleges were recruited through the U.P.S.C. Manipur Public Service Commission and the teachers are absorbed in the Government College only after selection by the U.P.S.C./Manipur Public Service Commission. On the other hand, this requirement, was not necessary in the case of appointment of teachers in the Private and Government Aided Colleges This shows that the service conditions of the teachers in the Government Colleges and the service conditions obtaining in the Private/Government Aided Colleges arc different.

By an order dated 12-4-77, the Government of Manipur took over the Churachandpur College on the terms and conditions specified in the said order. On 19-12-77 another order was passed by the Government to the effect that the employees of the said Colleges had been absorbed against the posts created with effect from 1-9-77. By another order dated 16-12-77 the Government took over the (sic) College on the terms and conditions specified therein1. It will be seen in Clauses 4 and 5 of the order that the service of the staff absorbed was to commence from 16-12-77. This shows that the existing staffs of the Colleges were absorbed in the Government service with effect from the date of taking over the Colleges by the Government. By another order dated 4-9-78 the Government of Manipur took over 9 Aided Colleges on the terms and conditions mentioned in the said order. In Clause 5 of the order, it was stipulated that the service of the existing staffs absorbed by the Government would commence with effect from the dale of taking over the Colleges i.e. 4-9-78. The teachers of the taken over Colleges, however, voiced their grievance through the Association, namely All Manipur Government College Teachers Association and wanted a revised terms and condition''s and an agreement was arrived at between the Association and the Government on 22-9-78. It was stipulated that the services of the taken over College teachers would be protected and would be counted with effect from 1-7-57 for the purpose of calculating their pay, pensionary benefits and seniority. This agreement was objected to by the Petitioners Association on the ground that the benefits given to the taken over teachers of their back services with effect from 1-7-57 was highly prejudicial to the service conditions of the Petitioner''s Association. On being protested, an agreement was arrived at between the Petitioner''s Association and the Government on 18-10-78. By this Agreement, it was agreed that the service interest, the seniority of the Government College teachers and the employees will be fully protected whenever the Private Colleges are taken over and made the Government Colleges. It was also agreed that the Government would maintain a common cadre for all teachers including those belonging to the newly converted Colleges. Thereafter, by an order dated 1-11-78 the Govt. has decided that the past service of the teachers of the taking over Colleges would be subject to the recommendation of the Manipur Public Service Commission for which a special procedure would be deviced and that the past services of the teachers of taking over Colleges would be counted with effect from 1.7.57 for the purpose of pay and allowances, pension and gratuity, this decision was again opposed by the Petitioners Association in the form of strike to ventilate their grievances, this was followed in negotiated settlement between the Government and the representatives of the Petitioners Association that the Government would consult the interested parties in the matter before finalising the same. In the meantime, the Manipur Public Service Commission examined the matter and collected the relevant datas from various States of India where similar cases of taking over the Private/Government Aided Colleges by the Government took place. After completion of collection of datas from various States, a copy of the datas collected was forwarded to the Petitioners Association with the request to give their comments on the matter and the Petitioners Association submitted their proposals on the basis of the materials furnished to furnished to them by the Government by its letter dated 17.9.79.

Thereafter, by an order dated 20th December, 1979 the Government of Manipur created two separate cadres, called Cadre-A and Cadre-B. It was further, ordered that no integration between Cadre-A and Cadre-B will be done without consultation with them and their consent. By the aforesaid order, special pay of 10% was granted to the employees of the 4 Government Colleges coming within the purview of Cadre-A. By another order dated 28-11-78 another 6 affiliated Private Colleges was taken over with effect from 1-1-80. In the said order it was stipulated that all matters relating to the service of the staff including their past service would be decide in due Course.

All these exercises culminated in framing the rules called Manipur Civil Service (Appointment and other Service Conditions of Employees of the Government Aided/Private Institution Rules, 1981) (hereinafter the Rules). It is also one of the grievances of the Petitioners that this Rules was framed and finalised without consulting the Petitioners Association as assured.

In this writ petition, taking over of the College 1981 Rules, particularly, virus of Rule 7 was challenged. The taking over of the Colleges are challenged on the ground that under Rule 14 of executive business of the Manipur Rules, 1972, all cases referred to in the schedules appended to the rules shall be brought before the Council of Ministers. Schedule 15 referred to in the rules deals with the proposals for creation and abolition of Gazetted posts. Schedule 17 deals with the proposals involving any important changes of policy or practice having State wide application. It is stated that taking over of College involved creation of Gazetted posts. Similarly, decision to take over the Colleges also involves a high policy decision having State wide application. It is alleged that the decision was taken by then Chief Minister without placing before the Council of Ministers as per requirements of the rules, Next, it is contended that the Government of Manipur acted without jurisdiction and without any authority of law in taking over the Private Collagen by an executive order, inasmuch as, taking over of an institution can only be clone after the law is passed by the appropriate legislation and no such law since has been passed by the legislature, the same is entirely illegal and without jurisdiction and all subsequent orders pursuant to such order are null and void.

The validity of 1981 Rules, particularly, virus of Rule 7 of the Rules was challenged on the ground that the said rules seriously prejudiced the interest of the members of the Petitioner''s Association inasmuch as by the said rules, the past service rendered by the employees of the Aided and Private Colleges taken over by the Government was counted as experience or service required for the promotion or direct recruitment as the case may be, whereas the lecturer in the Government College will not get the benefit of his past service rendered in the Private College. It is, therefore, argued that Rule 7 of the Rules is rentirely illogical and is violative of Articles 14 and 16 of the Constitution of India arid the same is liable to be struck down. It is, further, argued that by virtue if benefit given by Rule 7 to the employees of the taken over Colleges who joined later then the members of the original Government Colleges will be unduly better placed for promotion to selection grade/Principal/Director of Education and such other higher promotional posts.

The Respondents filed counter. The case of the Government with regard to the appointment of teachers in the Government Colleges and Private/Government Aided Colleges are, set out in paragraph 4 of the affidavit in opposition. It says that their services and other matters regarding the two sets of rules of this Government Colleges and the Government Aided Colleges are Governed by different sets of rules framed by the Government. It is further stated that the service conditions of the Aided Governments teachers ate governed by 3 (three) sets of Rules framed by the Government i.e. the Grant in aid and rules, 1968, the Manipur Aided College Service Rules, 1974 and the Manipur Aided College Leave Rules, 1974 respectively whereas the service conditions of the Government College teachers are laid down in the relevant sets of the Government Rules framed under Article 309 of the Constitution. Under the sets of Rules teachers for the Government Colleges arc selected by the U.P.S.C./Manipur Public Service Commission whereas teachers of the Government Aided College selection is made by the Selection Committee associated with U.P.S.C. constituted under the said Rules. With regard to the allegation that the Government of Manipur acted without jurisdiction in taking over the Colleges by the executive order, the case of the Respondents is set out in paragraph 14 of the affidavit in opposition and says that the Government of Manipur acted within jurisdiction and in accordance with the authority of law, in exercise of its power and in accordance with Article 162 of the Constitution of India. It is further stated in paragraph 29 of the counter that the State is quite competent to take over 9 Government Colleges for the better administration and management and accordingly, acted under Article 162 of the Constitution of India. The State, under the directive principles of the State policy is empowered to make effective provision for securing the right to education and for that purpose no legislation is necessary. With regard to the allegation that taking over of the Colleges was done in violation of Rules of the executive business of the Government of Manipur Rules, 1972, and Schedules 15 and 17 appended thereto, a statement has been made in paragraph, 13 of the. Counter and says that taking over the College was done after obtaining due approval of the Council of the Ministers. It is further stated that the decision was further approved on 15-6-78 by the Assembly on the floor of the House, and regarding the virus of Rule 7 a statement made in paragraph 26 of the counter that since the members of the staff of the Government Colleges and taken over Colleges along to different cadres, namely, Cadre-A and Cadre-B respectively and since Rule 7 operates on different fields, it is quite incorrect on the part of the Petitioners to say that Rule 7 is violative of Articles 14 and 16 of the Constitution of India.

These are illustratives of the rival contentions of the parties.

With regard to the submission of the learned Counsel for the Petitioners that the decisions for taking over the Colleges were taken in violation of Rule 14 of the Rules of Executive Business of Manipur Rules 1972 and Schedules 15 and 17 appended thereto. A counter has been filed by the Respondents and in paragraph 13 of the said counter, the matter relating to the taking over of the Aided and. Private Colleges was actually placed before the cabinet and after obtaining due approval of the cabinet the Colleges were taken over in exercise of the executive powers under Article 163 of the Constitution of India. This being the position, I am of the view of that there was no violation of Rule 14 of the Rules of the executives business and schedules appended thereto.

With regard to the submission of the learned Counsel for the Petitioners that the Government of Manipur acted without Jurisdiction in taking over the Private Colleges without appropriate legislation, it is submitted by Mr. A. Nilamani Singh, learned Counsel for the Respondents that in the absence of legislation or rules, the State Government is empowered in exercise of its executive power under Article 162 of the Constitution to take over the College by an executive order. It is further submitted by Mr. A. Nilamani Singh, learned Counsel for the Respondents that education being enumerated in item No. 25 of the list 3 of the 7 Schedule, the State is competent for the better administration and management to act under Article 162 of the Constitution and no legislation is necessary for taking over the Colleges. It is submitted by Mr. A. Nilamani Singh that under the directive principle of the State policy, it is the duty of the State to make effective provisions for securing their right to education and it is nothing wrong in the action of the State in taking over the College to achieve the directive principle of the State policy. In this connection, Mr. A. Nilamani Singh, in support of his contention, referred to a decision of the Apex Court rendered in Bishambhar Dayal Chandra Mohan and Others Vs. State of Uttar Pradesh and Others, , where their Lordships had held in paragraph 20 of the judgment that "so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill." Apart from the fact that the Colleges were taken over with effect from 14-9-78 and taking over of the Colleges are challenged in this writ petition after almost lapse of 5 years, in the absence of the Rules and Act, the State is empowered in exercise of the executive authority under Article 162 of the Constitution to take executive action, inasmuch as, executive power of the State is coextensive with the legislative power of the state. There is, therefore, no merit in the submission of the learned Counsel for Petitioners that the State has acted without jurisdiction in taking over the Colleges.

I, now, advert to 1981 Rules. Before I deal with Rule 7 which is challenged in this writ petition, let us have quite look into Rule 3. Rule 3 deals with taking over of the Govt. Aided Colleges/Private, Institutions. This Rule contemplates that the option benefit will be given to the staff of the Private Colleges at the time of taking over and if he is willing to absorb in the Government service, list would be prepared of the willing members of the Private Institutions/Government Aided Colleges by a Committee which would ultimately put forward with the relevant records to the MPSC. Thereafter, the Manipur Public Service Commission would go into the matter and make necessary change if it so desires and, then, inform the Government accordingly. After this, list would be finally approved by the Government and the employees would be absorbed on the basis of the said list. This rule, therefore, stipulates the procedure for absorption of the employees in case the Government decided to take over the Aided Private Institution along with the staff.

Rule 7 of the Rules which has been challenged in this writ petition is read under:

Rule 7: Protection of past service:

(a) The persons so appointed in the Government service shall be deemed to have been appointed in the Government service in the same capacity as in the Govt. Aided/Private College i.e. temporary, officiating, substantive etc. as the case may be and the condition of probation, confirmation shall be deemed to have been waived in case of substantive or permanent officials.

(b) The service rendered by the employees of the Govt. Aided/Private Institutions on and equated post shall be counted ay experienced or service required for promotion or direct recruitment as the can may be.

(Emphasis supplied)

The Petitioners Association is aggrieved by Rule 7, particularly Rule 7(b).

This is precisely the case of the Petitioners Association. The service conditions of the teachers in the Govt. Colleges are different from the service conditions obtaining in the private and Govt. Aided Colleges, The teachers in the Govt. Colleges were recruited under Recruitment Rules, under which in order to be, appointed as a lecturer the candidate must have three years teaching experience in any College. Further in order to be appointed as a lecturer, a person has to appear before UPSC/Manipur Public Service Commission and he is absorbed in the Govt. Colleges from the date he is selected by the said Commission, whereas the teachers in the Private and Govt. Aided Colleges no such requirement of minimum experience is necessary In order to be appointed as lecturer. There is also no requirement to obtain the approval of the UPSC/Manipur Public Service Commission. But, by virtue of Rule 7(b) the employees and the teachers of the taken over Colleges will now get full benefit of the past services rendered in the Private Institution for. the purpose of promotion or direct recruitment. While the lecturer in a Government Colleges, would not get the benefit of his past service rendered in the Private Colleges. It is, therefore, argued that Rule 7(b) is highly discriminatory and arbitrary and without any rational basis and the same is hit by Article 14 and 16 of the Constitution of India and liable to be struck down, This argument, in ray view is forceful.

In support of the argument as, to how the staff of the Petitioners Association has been discriminated, an instances is illustrated in paragraph 36 of the writ petition which is extracted:

That by virtue of the benefit given by Rule 7 the members of the taken over Colleges who joined later than the members of the original Government Colleges will be better placed for promotion to selection grade/Principal/Director of Education and such other higher promotional post. For example, Shri N.C. Sen, Principal of D.M. College of Science entered the College in 16.1.51 and became Principal in 1969, On the other hand Shri A. Robichandra Singh was directly appointed as the Principal on 8-8-63 of Modern College. Although he was not qualified at that time to be appointed as Principal of that College. It may be mentioned that at that time the qualification prescribed by the Gauhati University for appointing a Principal in a Govt. Aided/Private College was earlier applicable in the State of Manipur which required the person concerned to have 10 years college teaching experience for being appointed as a principal. Mr. A. Robi Chandra did not fulfil that condition and he was prior to his appointment as Principal, serving as a teacher in High School. As per Rule 7 he will be senior to Mr. N.C. Sen and will be better placed for promotion to the detriment of the members of the Government Colleges. Similarly Mr. T. Torobi Singh, Principal of Nambol Sanoi College was appointed as Principal on 1-9 67, although he did not have the requisite qualification for being so appointed. Further by virtue of Rule 7 of the Rules he will be senior to Mr. Sen and better placed for promotion to the higher post.

Mr. J. Ray, Principal of D.M. College of Arts and Commerce entered Government service as lecturer on 22-8-51 and was promoted as Principal on 20-1-76. He has now by virtue of Rule 7 become junior and worst placed compared to Shri Kunja Behari Singh, Principal of Manipur College who entered service on 1-7-59 and got promotion as Principal on 4-7-70.

Similarly the Petitioner No. 2 entered Government service as lecturer on 15.12.58 and was promoted us principal on 13.8.72 and as such by virtue of Rule 7 he will be junior to Shri Th. Ibohol Singh, Principal C.I. College who entered in service in a private College on 7-8-69 and came to be promoted as Principal of the said college on 29-5-71 Interestingly it may be mentioned that Mr. Ibohol Singh came as a trainee and undertook training under the Petitioner No. 2.

The argument that by virtue of Rule 7(b) the teachers of the taken over Colleges will get full benefit of the past services rendered in the Private Colleges for the purpose of promotion or direct recruitment as the case may be, whereas the same facility has not been extended to the lecturers in the Govt. College for the period they have rendered in the Private College is highly arbitrary and discriminatory and is violative of Articles 14 and 16 of the Constitution, is well founded and must prevail.

By now it is well settled principle of law that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and, ii, therefore, violative of Article 14, and if it affects any matter relating to public employment, is also violative of Article 16. In this connection, it has been held in E.P. Royappa Vs. State of Tamil Nadu and Another, by the Apex Court in paragraph 85 of its judgment as under:

In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J. "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate us all embracing scope and meaning, for to do, so would be to violate its activist magnitude, Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits, From a postivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn ememies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise; of power and that is hit by Articles 14 and 16. Mala fide exercise; of power and arbitrariness are different lethal radiations emanating from the same vice in fact the letter comprehends the former. Both are inhibited by Articles 14 and 16.

The members of the teachers of the Private/Aided College were not appointed according to the rules. They, therefore, become members of the service when their services aw absorbed according to the Rules and they are entitled to seniority from the date of becoming such members.

It is well settled principle of law that if the initial appointment is not made according to the Rules, subsequent regularisation of service of an employee does not entitled him to the benefit of intervening service for seniority See Masood Aktar Khan v. State of Madhya Pradesh 1990 SCC 24.

Mr. A. Nilamani Singh fairly submits that there may be some commission or commission in order to do a great right and refers to observation in Charan Lal Sahu Vs. Union of India, of the Apex Court, where their Lordships observed in paragraph 124, ''to do a great right'' after all, it is permissible sometimes ''to do a little wrong,'' He, therefore, submits that in order to do justice to the larger people some wrong might have committed to the few teachers. He, however, submits that if at the stage Rule 7 is struck down, by now, many waters have been flown under it and it will affect the fates of about 752 employees enclusive of about 400 teachers and 1000 students, and there will be chaos in the administration of education. At the same time, if Rule 7(b) is allowed to continue, it will cause serious prejudice to the service conditions of the lecturers in Govt. Colleges as I am of the view that the Rule is arbitrary, discriminator and violative of Articles 14 and 16 of the Constitution.

For the afore-stated reasons, I struck down Rule 7(b) of the Rules as unconstitutional being violative of Articles 14 and 16 of the Constitution. Petition is partly allowed. No order as to costs.