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Joginder Singh Virk and ors. Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2045 of 1972
Judge
Reported inAIR1973P& H465; 1974CriLJ240
ActsConstitution of India - Article 26
AppellantJoginder Singh Virk and ors.
RespondentThe State of Punjab and ors.
Cases ReferredSidhrajbhai Sabbai v. State of Gujarat.
Excerpt:
.....under article 227 of the constitution. - 200-500 and was consequently entitles to under the instructions annexure 'c' to the counting of his total service as a lecturer in the other institutions as well for the purpose of the determination of his seniority inter se with the petitioners. (b)* (c) *(d) *it is unnecessary in the present case to determine whether a primarily educational institutions like the khalsa college, amritsar in the present case would fall within the ambit of an institution for charitable purposes. this stands well established by the authoritative pronouncement in the kerala education bill case air 1958 sc 956. even within the ambit of article 30 such instructions may be issued and their lordships in sidhrajbhai sabai's case air 1963 sc 540 have laid a dual..........january, 1963, he would rank junior to all the petitioners but in view of the directions of the state government in annexure 'c', respondent no. 4's earlier service in other institutions has also been taken into account thereby ranking him as senior to them.3. it is then averred that the college authorities granted the revised grade of rs. 400-800 to the petitioner no. 2 kulwant singh with effect from the 16th july, 1969, and that they were inclined to ignore the instructions in annexure 'c'. respondent no. 4 darshan singh is alleged to have approached the director of public instruction who passed the order dated the 22nd april, 1971, withdrawing the revised grade from shri kulwant singh petitioner and granting the same to respondent no. 4 with retrospective effect vide annexure 'd'......
Judgment:
ORDER

1. The Primary ground on which this writ petition has been pressed is the alleged infraction of Art. 26 of the Constitution of India. Consequently it suffices to advert mainly to the facts relevant to this issue.

2. The three petitioners are Lecturers in the Khalsa College, Amritsar, which is averred to be an Institution established for the last fifty years by the Sikh community with the object of propagating and conserving the culture, heritage and tradition of the said community. In the wake of the recommendations of the Kothari Commission it was decided that the grades of the private college lecturers should be revised with effect from the 1st of November, 1966, and three revised grades of Rs. 300-600; Rs. 400-800; and Rs. 700-1100 were introduced. The seniority list of the Lecturers of the Khalsa College, Amritsar, has been attached as annexure 'A' to the petition and it is averred that the three petitioners rank senior therein to respondent No. 4 Darshan Singh Sarin. It is admitted that as a result of the upgrading of the pay scales of the College Lecturers consequent upon the recommendation of the Kothari Commission, the additional expenditure was to be borne by the Government in the shape of a grant for a number of years. The respondent-State of Punjab and the Director of Public Instruction issued instructions regarding the manner in which the revised grades were to be given to the Lecturers and copies of these instructions are annexures 'B' and 'C' to the petition. The petitioners are primarily aggrieved by annexure 'C' and the relevant portion thereof around which the argument has revolved is in these terms:--

'The Government of Punjab is pleased to substitute clause (II) of Para 2 of the Punjab Government Memo. No. 4/Spl. dated the 2nd February, 1968, as under:--

(xi) The entitlement to the revised scale of Rs. 400-800 will be on the basis of seniority as determined by the length of service of a person in the college has working on 1st November, 1966. However, exception may be made in the cases of persons recruited from outside who have joined on a salary higher than the minimum in which case total service as a college lecturer will be taken into account. ILLUSTRATION. x x x x'

The particular grouse of the petitioners is that the exception provided in the above said instructions in case of persons who were on a salary higher than the minimum was contrary to the pre-existing College Rules and has the adverse effect of rendering Lecturers junior to the petitioners as senior to them on its basis. It is averred that respondent No. 4 had earlier served the S. D. College, Pathankot, from the 10th of July, 1958, to the 24th of June, 1959, and thereafter he served in the Khalsa College, Amritsar, from the 18th January, 1960 to 22nd July, 1961. Thereafter, he joined the S. D. College, Barnala, and worked therein from the 23rd July, 1961, to the 15th January, 1963, and finally joined the Khalsa College on the 18th of January, 1963, where he continued to serve. It is the petitioners' case that if the continuos length of service of respondent No. 4 is counted only from the 18th January, 1963, he would rank junior to all the petitioners but in view of the directions of the State Government in Annexure 'C', respondent No. 4's earlier service in other institutions has also been taken into account thereby ranking him as senior to them.

3. It is then averred that the College authorities granted the revised grade of Rs. 400-800 to the petitioner No. 2 Kulwant Singh with effect from the 16th July, 1969, and that they were inclined to ignore the instructions in annexure 'C'. Respondent No. 4 Darshan Singh is alleged to have approached the Director of Public Instruction who passed the order dated the 22nd April, 1971, withdrawing the revised grade from Shri Kulwant Singh petitioner and granting the same to respondent No. 4 with retrospective effect vide annexure 'D'. Thereafter the petitioners being aggrieved by the above said order represented to the Director, Public Instruction vide annexure 'E' but no decision thereon has been vouchsafed to them. Consequently by way of this writ petition they have challenged the relevant part of Annexure 'C' and also Annexure 'D' abovesaid.

4. In the affidavit of the Joint Director of Public Instruction, Punjab, which has been filed in reply it is admitted that the grades of teaching personnel in the privately managed Colleges were revised on the recommendations of the Kothari Commission and the State Government laid down the criteria for determining the seniority of teachers, who were working in their respective Colleges on the 1st of November, 1966, for their entitlement to the revised grades. Subsequently clarifications regarding the eligibility of teachers for these grades were also issued on the 26th July, 1968, vide annexure 'C' to the written statement. It has been averred that the additional expenditure consequent upon the upgrading of the pay scales was borne by the State and the Central Governments on a ration of 20 per cent. and 80 per cent. respectively upto the 31st of October, 1971, and there after the entire additional expenditure has been borne by the State Government. The State Government has also undertaken the liability to reimburse up to the extent of 100 per cent. of expenditure to the privately managed Colleges on account of the payment of Dearness Allowance from the 1st May, 1967, onwards. 59 private Colleges in the Punjab State including the Khalsa College, Amritsar were eligible for the grants-in-aid under the 'Revision of Salary Scales Scheme'. Revised grades were given to the teaching personnel of these colleges in accordance with the criteria laid down by the State Government. The grants under the above said scheme were paid to the privately manages Colleges on the condition that they would strictly adhere to the instructions and the criteria contained in the Punjab Government communications on the subject and these instructions were existing at the time of allowing the grant to the Colleges. The College Mangements willingly agreed to abide by the said instructions in lieu of the substantial financial aid afforded to them by the State. In October, 1968, the State Government even constituted an Advisory Committee for hearing any grievance of the teachers or the management regarding the instructions issued by the State Government and the grants-in-aid given to them and no representative of either the teachers or the managing bodies ever raised any objection to the implementation of the instructions issued by the State Government which indeed were welcomed by them. It is averred that keeping in view that fact that the entire additional expenditure on account of the revision of the salary scales of the teaching personnel in private Colleges is borne by the Government the State Government was competent to lay down the criteria for the grant of the revised grades.

5. On merits it is admitted that petitioners Nos. 2 and 3 rank senior to petitioner No. 1 in terms of the Government communications laying down the criteria. It is then denied that any part of the additional expenditure under the 'Revision of Salary Scale Scheme' was borne by the Management of private Colleges. The averments of the petitioners with regard to the seniority of respondent No. 4 Darshan Singh Sarin are controverted and it is stated that he was recruited in the Khalsa College at a higher start in the grade of Rs. 200-500 and was consequently entitles to under the instructions Annexure 'C' to the counting of his total service as a Lecturer in the other institutions as well for the purpose of the determination of his seniority inter se with the petitioners. It is reiterated that the State Government is competent to lay down and to issue instructions in this regard. It is denied that the withdrawal of the grade from petitioner No. 2 and the giving of the same to respondent No. 4 was done on any ulterior ground but it was the result of the scrutiny of the relevant record received through proper channel and is otherwise devoid of merit as the grant of grades to respondent No. 4 is in accordance with the criteria and the instructions issued by the respondent State. Lastly it is averred that large financial aid is given to the private Colleges expressly on the condition that they will strictly adhere to the instructions and the Management Committees of the said Colleges have willingly, agree to the same.

6. To clear the ground it may first be noticed that Mr. Kuldip Singh frankly concedes that Art. 30 which specifically relates to the rights of minorities to establish and administer educational institutions cannot be attracted in the present case. This is so because the Sikhs within the State of Punjab are in a majority and in view of the recent judgment of their Lordships of the Supreme Court in D. A. V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731 and D. A. V. College, Jullundur v. State of Punjab. AIR 1971 SC 1737, the said Article cannot be invoked in favour of the petitioners within this State. The case has consequently been argued on these admitted premises.

7. Relying primarily on Art. 26 of the Constitution the learned counsel for the petitioners first contents that in any case the sikhs fall in the terminology of 'religious denominations' as used in the said Article. It was argued that the Khalsa College in which the petitioners are employed is an institution run by a religious denominations namely, the Sikhs. It is then the contention that an educational institution of this kind would also fall within the description of an institution for charitable purposes. On the basis of these two assumptions Mr. Kuldip Singh has vehemently contended that the impugned instruction annexure 'C' infringes the fundamental right of a religious denomination to administer an institution established by it. It was sought to be argued that annexure 'C' makes such serious in roads into the administration of the College that it virtually takes away the protection afforded by Art. 26 of the Constitution.

8. The relevant part of Art. 26 of the Constitution on which much reliance has been placed is in these terms:--

'26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes.

(b)* * *

(c) * * *

(d) * * *'

It is unnecessary in the present case to determine whether a primarily educational institutions like the Khalsa College, Amritsar in the present case would fall within the ambit of an institution for charitable purposes. This issue in some form has come up for consideration before their Lordships of the Supreme Court but they have been pleased to leave it open for consideration. In I. S. Azeez Basha v. Union of India, AIR 1968 SC 662, Chief Justice Wanchoo speaking for the Court observed as follows:--

'* * * A question was raised whether Art. 26 would take in its sweep educational institutions on the ground that such institutions for charitable purposes. It was urged that Art. 26 will not apply to educational institutions for there is specific provision in Art. 30(1) with respect to educational institutions and therefore institutions for charitable purposes in clause (a) of Article 26 refer to institutions others than educational ones. There is much to be said in favour of this connection. But we do not propose to decide this question for present purposes. We shall assume that educational institutions would also come within Art. 26(a) as institutions for charitable purposes.'

Similar observations have also been made by their Lordships in Sidhrajbhai Sabbai v. State of Gujarat. AIR 1963 SC 540. Without deciding this ticklish question it appears to me that even assuming that the Khalsa College falls within the ambit of Art. 26(a), the said provision does not in any way seem to aid or advance the case of the petitioners.

9. It is not in dispute that the State may by executive instructions impose certain conditions on an educational institution to which it affords substantial financial aid. This stands well established by the authoritative pronouncement in the Kerala Education Bill case AIR 1958 SC 956. Even within the ambit of Article 30 such instructions may be issued and their Lordships in Sidhrajbhai Sabai's case AIR 1963 SC 540 have laid a dual test in this regard in the following terms:--

'Regulations which may lawfully by imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test--the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.'

Assuming for a moment that the above test through formulated n the context of Art. 30 may be analogy be imported as regards Article 26 also, it is evident that neither of these have been violated by the impugned instructions annexure 'C'. It is the first to be determined whether the said instruction in any way interferes with the right of the Sikhs to maintain the Khalsa College if it is deemed to fall within the ambit of an institution for charitable purposes. Nothing substantial has been pointed out on behalf of the petitioners to show that annexure 'C' is of a nature which vitally undermines the right of a religious denomination to maintain the educational institution above-said.

10. It deserves notice that the argument of arbitrariness or unfairness against these very instructions incorporated in annexure 'C' has been repelled in categorical terms by the Division Bench in Satya Parkash v State of Punjab, Civil Writ No. 2652 of 1970 decided on the 3-9-1970 (Punj and Har) in the following terms:--

'We are unable to find any element of arbitrariness or unfairness in the directions given by the State Government as contained in annexure 'A'. The directions have been made universally applicable to all the institutions and to all the teachers of private aided institutions. There is, therefore, no force in the general contention of the counsel for the petitioners.'

Faced with the above-said observation Mr. Kuldip Singh indeed did not press his argument on the basis of any alleged arbitrariness or unfairness as regards the impugned instructions.

11. Consequently the remaining point mainly pressed by the learned counsel for the petitioners is that the impugned instruction takes away the right of the respondent College to administer the Institution. It was sought to be contended that the impugned instructions virtually took away the effective control of the Institution from its managing body and vested it in the State.

12. I am unable to find anything in annexure 'C' which may be calculated to take away the effective control of the Educational Institutions from out of the hands of its management. Indeed the impugned instruction is only a part of a beneficent act of the State Government in granting substantial and massive financial aid to the Institution. Far from in any way hampering the establishment or the maintenance of the Institution the State Government by virtually taking the burden of all the revised grades is substantially aiding and supporting in the maintenance thereof. As already noticed the criteria laid down now by such instruction is basically reasonable. It still vests in the management the right to make exceptions in a particular case where a Lecturer had joined the institution on a salary higher than the minimum and had previously rendered services as a College Lecturer in other affiliated Institutions. This rule is obviously reasonable and in favour of the College Lecturers so that their earlier services in the teaching Institutions may not be rendered nugatory. It is, therefore, evident that the instruction is indeed in the interest of the Institution as such, and obviously it is in the interest of the teaching personnel as well. The State Government which gives the wherewithal of giving the revised grades has merely laid down a rational criteria for determining the persons entitled to such higher grades. It is not in dispute that the managing body of the college has willingly accepted the grants-in-aid and the conditions attached thereto laying down the nexus for their disbursement. It also does not seem to be in dispute that the teaching personnel in the respective colleges have willingly accepted and opted for the new grades which are entirely for their benefit.

13. I am, therefore, of the view that the impugned instruction contained in annexure 'C' does not even remotely transgress the fundamental rights guaranteed under Article 26 of the Constitution of India. This contention on behalf of the petitioners is therefore without merit and is hereby rejected.

14. The only other contention rather faintly pressed is in the context of annexure 'D' Mr. Kuldip Singh had sought to argue that annexure 'D' is an order of a peremptory nature by which respondent No. 4's grade has been forth rightly sanctioned by the orders of the State and a sum of Rs. 293/- is ordered to be recovered from the College in connection with the promotion given to Kulwant Singh petitioner. On these premises it was suggested that this was tantamount to administrative interference in the running of the institution which could not be warranted by law.

15. As there is no factual basis for the argument advanced by the learned counsel it is unnecessary to examine whether the Director of Public Instruction would be entitled to issue an order of the nature of annexure 'D'. The contention of the counsel for the petitioner is apparently based on some misapprehension and stems from reading annexure 'D' out of its context. It is evident from this annexure itself that the same was in reply to a letter dated the 3rd March, 1971, of the Principal of the Khalsa College. The record has been made available by the respondents and a reference of this letter of the 3rd March, 1971, would show that there in the Principal had himself made the request which had been simply acceded to or granted in the reply thereto by the Director of Public Instruction vide annexure 'D'. In the communication from the Principal it had been pointed out that by an oversight senior grade had been given to Kulwant Singh petitioner instead of Darshan Singh Sarin, respondent No. 4. On facts it was elaborated therein that the total length of service of respondent No. 4 was 7 years 8 months and 14 days which was longer than the calculated length of service of Kulwant Singh petitioner. On this basis the principal had himself requested that the higher grade be granted to respondent No. 4 and the necessary adjustments be made as regards Kulwant Singh, petitioner. It were these requests which were sanctioned and the amount for recovery ordered by annexure 'D'. It is, therefore, patent that this annexure far from being any peremptory interference in the College affairs is merely a concurrence of what the college authorities had themselves prayed for.

16. No other contention has been raised and finding the petition without merit I dismiss the same with costs. Counsel's fee Rs. 100/-.

17. Petition dismissed.


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