S.B. Majmudar, J.
1. In this petition under Article 226 of the Constitution, the petitioner who is a retired professor has challenged the denial of postgraduate scale i.e. P. G. Scale of Rs. 700-40-1100 to the petitioner which according to him, is wrongly denied by respondent Nos. 1 to 5 herein which are authorities concerned with giving such grade to the petitioner. The concerned respondents have refused to grant the request of the petitioner on the basis that he was a retired Government servant who was re-employed by Nadiad Education Society and consequently, as per clause 5 of the Government Resolution dated 6-6-1970, annexure 'N' to the petition, the petitioner could not claim P. G. Scale to any extent which would make emoluments of the petitioner in any way higher than the last pay drawn and the pension as per the Govt. rules. The petitioner's contention is that clause 5 of the circular is violative of fundamental right guaranteed under Article 14 of the Constitution and is null and void.
2. In order to appreciate the grievance of the petitioner, it is necessary to note a few relevant facts leading to this petition. The petitioner was admittedly an ex-Government servant who retired from the Government service of the then State of Saurashtra in 1956 having reached 55 years of age being the age of superannuation. The petitioner had worked all throughout as a professor of history and economics during his tenure as Government servant. After his superannuation, he joined the service of various private colleges as professor of history. The petitioner worked as professor of history in M. Y. B. college at Surat during the year 1957-58. Thereafter, he joined Talod Arts College where he worked for some time and ultimately from 1964 to 1970, he worked as a professor of history in Nadiad college run by the Nadiad Education Society. The question of granting P. G. time scale to the University teachers and teachers serving in affiliated colleges cropped up at the relevant time and the University Grant Commission recommended P. G. scales for these teachers. As per the recommendations of the University Grant Commission, P. G. time scale which was from Rs. 700-1100 was to be awarded to teachers teaching post-graduate courses in various colleges run by the University as well as in other private colleges affiliated to the University. This P. G. Scale was made effective from 1-4-1966. The question arose as to whether the petitioner, amongst others, was entitled to be awarded this scale as he was admittedly a postgraduate teacher from 1-4-1966. The petitioner's claim for being awarded the aforesaid scale was not accepted by respondent No. 4-University which was the affiliating University so far as the college where the petitioner was serving at the relevant time, was concerned. By a communication dated 30-1-1970 addressed to the petitioner by the Registrar of respondent No. 4-University, which is annexure 'L' to the petition, it was pointed out that so far as the question of grant of P. G. scale of Rs. 700-1100 to teachers of affiliated colleges as per 4th Five-year plan was concerned, the petitioner could not be awarded the said scale for the reason that he was a re-employed ex-Government servant. It appears that the aforesaid stand taken by the university proceeded on the basis of the impugned Govt. resolution at annexure 'N' to this petition, whereunder by clause 5, it was provided that so far as re-employed Government servants were concerned, their salary after superannuation had to be fixed according to the last pay drawn and the pension. It will be necessary to re-produce the said clause 5 of the resolution at annexure 'B', as a fierce attack is mounted on the said clause in the present petition. It states:
The pay of Government servants who are re-employed after superannuation should be fixed according to the Government rule shaving regard to the last pay drawn and the pension.
3. Now, it must be stated at this stage that the petitioner had earlier come to this Court for the very same relief viz. that he should be awarded P. G. scale of Rs. 700-1100 and the action of the concerned respondents in refusing the said claim was arbitrary and illegal. He had filed civil application No. 950 of 1974. In the said petition, amongst others, the petitioners had contended that denial of post-graduate scale to him was violative of the provisions contained in Article 14 of the Constitution and was arbitrary and ultra vires. The aforesaid petition was filed in this Court on 21-6-1974. During the pendency of the said petition, the President of India issued a proclamation of emergency on 25-6-1975 declaring that a grave emergency existed whereby the security of India was threatened by internal disturbances. On the same day the President promulgated an order under Article 359(1) which ran as under:
In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the Proclamations of Emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December 1971 and on the 25th June 1975 are both in force.
This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.
This order shall be in addition to and not in derogation of any order made before the date of this order under Clause (1) of Article 359 of the Constitution.
4. The above order was later on amended by omitting words 'except the State of Jammu and Kashmir' in the earlier order. It is obvious that the aforesaid proclamation of emergency and the Presidential order under Article 359(1) of the Constitution came into force pending the earlier petition of the petitioner before this Court. In these circumstances, the petitioner's challenge to the concerned respondents' action in not granting P. G. scale to the petitioner at the rate of Rs. 700-1100 from 1 -5-1966 onwards on the ground that the said action was violative of Article 14 of the Constitution, had to be kept pending as mandated by Article 359(1) and the Presidential order issued thereunder. However, it appears that when the petition reached hearing before the Division Bench of this Court alongwith companion matters, the Division Bench consisting of S. Obul Reddi, C.J. (as he then was) and N.H. Bhatt, J. proceeded to decide the petitions on merits and did not adjourn the proceedings during the currency of the Presidential Order. Mr. N.J. Mehta for the petitioner states to me that he had already requested the Division Bench to adjourn the proceedings by filing written submissions but the said request was not granted. Whatever might be the development that took place during the course of hearing of the earlier petition before the Division Bench, the fact remains that the said petition was put up for final hearing on merits alongwith companion matters and the petitioner was heard on merits of his claim for being granted P. G. scale. Ultimately, the petitioner's petition, being special civil application No. 950 of 1974 alongwith other matters came to be finally decided by the Division Bench. Rest of the petitions were dismissed while the petitioner's petition came to be partly allowed. The judgment was delivered by the then Chief Justice S. Obul Reddi who spoke for the Division Bench. So far as the petitioner's case was concerned, the Division Bench rejected the petitioner's contention that clause 5 of the impugned resolution applied only to the reemployed Government servants who joined Government institutions after superannuation. The view taken by the Division Bench was that clause 5 applied to all ex-Government servants who joined Government colleges or even private Government aided colleges, and that the petitioner was not entitled to be paid salary as per scale of Rs. 700-1100 as demanded by him but only in the scale of Rs. 400-800. It will be profitable to extract at this stage the actual decision rendered by the Division Bench in the case of the petitioner alongwith the reasoning underlying the said decision:
The petitioner in special civil application No. 950 of 1974 had alleged that he was a professor working in a non-Government affiliated college as on April 1,1966 and as such was entitled to post graduate scale and the action of the University in not giving him the revised scale is illegal and contrary to the scheme. In his affidavit-in-reply to the petition, the Registrar of the University justifies the refusal to give the petitioner the revised scale of pay on the ground that the petitioner was not entitled to that scale of pay. In so justifying, the Registrar relied upon the regulation of the Govt., dated June 6, 1970 which deals with the revision of pay. Clause 5 of that resolution on which reliance has been placed reads:-'The pay of Government servant who are re-employed after superannuation should be fixed according to the Government rules having regard to the last pay drawn and the pension.
The petitioner was a Government servant and after retirement was re-employed in private colleges. It is for the reason that such of the Government servants who had retired and were re-employed after superannuation were not entitled to receive a salary more than the last pay drawn by them including pension, that this petitioner was not given the revised scale though he was eligible to the revised scale of Rs. 700-1100. What Mr. Mehta submits is that the reference to re-employment in clause 5 applies only to re-employment in Govt. colleges and it does not extend to re-employment in private colleges. We are unable to read this clause as sought to be interpreted by Mr. Mehta. The Govt. by its resolution dated June 6,1970 determined the method of fixation of initial pay of teachers in the revised scaled of pay. This resolution is in respect of scales of University and college teachers under the IV Five Year Plan scheme. It would be open to a private institution to re-employ a superannuated college teacher but if the private institution was to receive grant or aid from the government or from the University, it has to strictly implement the directions of the Government in the resolution. However, the Learned Counsel appearing for the University as also for the Government have both stated that this petitioner, Prof. Pathakji will only be entitled to be paid in the scale of Rs. 400-800 and he is not entitled to the scale of Rs. 700-1100. We, therefore, hold that he shall be paid only for the period he served in the private institutions in the scale of Rs. 400-800 and he is not eligible to the higher scale of Rs. 700-1100.
On the basis of the aforesaid reasoning and conclusion of the Division Bench, the petitioner was granted relief of being placed in the scale of Rs. 400-800 instead of Rs. 700-1100 which was demanded by him. His petition was partly allowed. The final direction given by the Division Bench in the petitioner's case reads as under:
So far as special civil application No. 950 of 1974 is concerned, it is allowed in part to the extent indicated above, namely, that the petitioner shall be entitled to be paid in the scale of Rs. 400-800 for the period he worked in the private colleges after his retirement from Government service. It is dismissed in all other respects with no order as to costs.
5. The petitioner's request for certificate of fitness under Article 132(1) was rejected. Mr. N.J. Mehta for the petitioner informs me that thereafter no special leave petition has been filed in the Supreme Court challenging the aforesaid decision of the Division Bench which Was partly against the petitioner.
6. Now, it may be noted at this stage that declaration of emergency which was earlier promulgated came to be rescinded and the emergency was lifted on and from 21-3-1977. It is thereafter that the petitioner filed the present petition on 4-5-1977 seeking the very same relief of being given P. G. scale of Rs. 700-1100 instead of Rs. 400-800 which was earlier granted to him by the Division Bench of this Court. The petitioner's contention is that earlier when he came to this Court, he had no locus standi to challenge the impugned Government resolution especially clause 5 thereof under which ex-Government servants who joined private colleges after superannuation are not granted P. G. scale of Rs. 700-1100. Mr. Mehta submitted that such a challenge on the anvil of Article 14 was not open to the petitioner in those days when the emergency was holding the field and the Presidential order under Article 359 (1) was in operation. He, therefore, contended that the petitioner at the time when the Division Bench finally heard his earlier petition could not have been permitted to challenge clause 5 as violative of Article 14 as this Court would not have been competent to entertain such challenge. In these circumstances, challenge to clause 5 of the impugned resolution by way of the present petition after lifting of the emergency when the petitioner's locus standi to reagitate the question about violation 'of Article 14 is restored, cannot be said to be barred by any principles of law. Mr. Mehta submitted that there is no question of constructive res-judicata, as the Division Bench when it decided the earlier petition alongwith other matters was not competent to consider such a challenge as the very locus standi of the petitioner to raise such a challenge was taken away by the Presidential Order. He, therefore, contended that there is no question of res-judicata either express or constructive so far as the present challenge to clause 5 of the impugned resolution on the touch stone of Article 14 goes. He, however, conceded that so far as interpretation of clause 5 of the resolution is concerned, the interpretation put by the Division Bench on the said provision cannot be gone behind by the petitioner as it would be clearly barred by res judicata, meaning thereby, the interpretation put by the Division Bench on clause 5 that it applied not only to ex-Government employees re-employed in Government institutions but also in private Government aided colleges, must be accepted to be binding to both sides. However, he submitted that even on the basis of the said interpretation, he is entitled to urge now when the Presidential declaration under Article 359(1) of the Constitution is out of way, that clause 5 of the Resolution as interpreted by the Division Bench would be violative of Article 14. He submitted that clause 5 is ultra vires Article 14 as it seeks to discriminate in a hostile manner the ex-Govt. servants who joined private Government aided colleges as compared to those who joined other institutions like Corporations which are otherwise fully aided by the State finance. The said clause 5 also gives hostile discriminatory treatment to teachers who were ex-Government servants as compared to teachers of private colleges who were not ex-Government servants, meaning thereby birth marks of these teachers before they joined the teaching line in private colleges. have been wrongly pressed in service for awarding discriminatory treatment to ex-Govt. servants who have joined as teachers in private colleges and who do the same type of work as their colleagues who are not ex-Government servants.
7. Mr. S.N. Shelat, learned Advocate for respondent No. 4 as well as Mr. S. T. Mehta, learned Asstt. Government pleader for respondents Nos. 1 to 3, on the other hand, submitted that the Division Bench of this Court while dismissing other petitions, partly allowed the petitioner's petition and granted him P. G. scale of Rs. 400-800 instead of higher scale of Rs. 700-1100 At that time, even though the Presidential declaration was holding the field, this Court was perfectly competent to interpret clause 5 and it did interpret it. At the relevant time. Article 14 was not suspended. Only locus stanch of citizens to move any court for enforcement of such Article was temporarily suspended. In these circumstances, when the Division Bench interpreted clause 5 in the way it did, it is presumed to have impliedly held that it was not violative of Article 14. Even otherwise, the said clause 5 was not violative of Article 14 even if such challenge is gone into independently in the present proceedings.
8. In view of the aforesaid rival contentions voiced by the learned Advocates of parties, following points arise for my consideration: 1. Whether challenge to impugned clause 5 of the resolution at annexure 'N' on the ground that it is violative of Article 14 of the Constitution can be gone into in the present proceedings in view of the earlier decision of this Court in petitioner's special civil application No. 950 of 1974 decided on 1-12-1976. In other words, whether the present challenge is barred by res-judicata either expressly or on the principle of constructive res-judicata. 2. Whether on merits, challenge to the impugned provision is legally sustainable.
9. So far as the first point is concerned, it must be kept in view that on the day on which the petitioner filed special application No. 950 of 1974 in this Court raising diverse contentions in support of the very same relief which he seeks today viz. about his claim for being granted P. G. scale of Rs. 700-40-1100 there was no bar regarding his locus standi to urge the alternative contention that clause 5 of the impugned resolution, if applied to ex-Govt. servants, who joined private. Government aided colleges would be violative of Article 14 of the Constitution. To recapitulate, the Presidential declaration of emergency and the order under Article 359(1) saw the light of the day months after the earlier petition was filed in this Court and was admitted to final hearing. Not only that, but in the earlier petition papers of which were called for by me for perusing the nature of the grievances voiced by the petitioner in that petition, in para 29 the petitioner had made the following averments:
The petitioner states that as on 1-4-1966, he was working as a professor in a non-Government affiliated college and was therefore entitled to benefit of post graduate scale. The exclusion of the petitioner from the list at annexure J is not only contrary to the syndicate resolution but also discriminatory, capricious and violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India and null and void. The petitioner states that classification between. an affiliated non-Government college teachers and at one time Govt. servant and those who were not Govt. servants at any time is absolutely irrational and without any nexus with the objective of post graduate scale. Therefore, exclusion of the petitioner from the list at annexure J is discriminatory and violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India.
It has further been averred in the same para at later stage as under:
The failure of the University to take appropriate action to enforce its directives on the college is contrary to the provisions of the Act, illegal, discriminatory and violative of fundamental rights of the petitioner under Article 14 of the Constitution.
10. The petitioner in the light of these averments had also requested this Court to award him P. G. scale of Rs. 700-1100 and for issuance of appropriate writ against the concerned respondents. It is not disputed by Mr. Mehta that the relief sought for by the petitioner in the present petition was identical with the relief sought by him in special civil application No. 950 of 1974. However, he submitted that so far as the impugned resolution is concerned, as it came to the notice of the petitioner only when it was produced alongwith the affidavit-in-reply filed by the respondents in the earlier petition, the 'petitioner had not challenged clause 5 of the said resolution on the anvil of Article 14. To that limited extent, according to him, his grievance should be examined on merits in the present proceedings despite the Division Bench decision of this Court as noted earlier. It must be noted that the main contesting respondents in the present petition are the same as in the earlier petition. The petitioner is also one and the same person. The relief which he sought for against the concerned respondents was the very same relief which he now seeks from this Court. In the earlier petition, the Division Bench partly granted relief to the petitioner by holding that he was entitled to P. G. scale of Rs. 400-800 instead of higher scale of Rs. 700-1100. It is true that in the earlier petition, the petitioner had not expressly challenged clause 5 of the impugned resolution, but the substance of the challenge regarding exclusion of ex-Govt. servants joining Government aided private colleges from the scale of Rs. 700-1100 was already brought in dispute by raising a contention that such exclusion would be violative of Article 14. Thus, substance of the challenge even in the earlier petition and in the present petition is the same. However, by the time earlier petition reached final hearing before the Division Bench, the Presidential declaration under Article 359(1) had certainly intervened and was holding the field. Mr. Mehta, therefore, would be justified in saying that inspite of such challenge being there in the petition, he had no locus standi to agitate that contention before the Division Bench when it heard the petition finally in December 1976. Mr. N. J. Mehta contended that he requested the Division Bench to suspend the proceedings, but the Division Bench did not do so. Now, a mere look at the Presidential declaration under Article 359(1) which is reproduced earlier shows that if such challenges were pending in any pending proceedings, the proceedings had to be suspended. It is true that the proceedings were not suspended by the Division Bench, but the petitioner cannot make grievance of the same in these proceedings. Remedy of the petitioner lay in challenging the order of the Division Bench in special leave petition, which he did not think it proper to pursue. Consequently, it is not open to the petitioner to urge before me that the Division Bench should have stayed the proceedings. It is too late in the day for Mr. Mehta to urge that aspect now. In fairness to Mr. Mehta, it must be stated that he also candidly agreed that it was not open to him to raise such a contention. He however, submitted that challenge on the ground of Article 14 was not open to the petitioner is December 1976. Hence, the Division Bench was not competent to go into that challenge. In these circumstances, there cannot be any bar of express resjudicata. Now, it is true that the Division Bench when it decided the matter would not have been competent to consider the constitutionality of clause 5 of the impugned resolution because of the Presidential Declaration holding the field. In fact, the Division Bench had not considered that question at all. Consequently, no question of express res-judicata would arise on the facts of this case. However, the moot question which would survive for my consideration is - whether the petitioner's present petition is barred by the principle of constructive res-judicata or principle analogous thereto. In order to decide this question, it is necessary to consider the scope and ambit of the Presidential declaration under Article 359(1). Article 359(1) provides as under:
(1) Where a proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by part III except Articles 20 and 21 as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
11. A mere look at the aforesaid provision shows that the only effect of the Presidential declaration under Article 359(1) is that during the time such declaration is in force, no citizen will have a right to move any court for enforcement of any of the fundamental rights enshrined under part III of the Constitution as may be mentioned in the order. Article 14 is expressly mentioned by the Presidential order under Article 359(1) of the Constitution as seen earlier. Consequently, no one could have moved this Court or any other court for enforcement of Article 14. However, so far as the petitioner's earlier petition is concerned, it was a pending petition and it was required to be suspended during the period, the proclamation was in force. However, as the Division Bench had not suspended the said proceedings and as the petitioner could not make any grievance about the same before me, that aspect may not detain me any further. Yet, the fact remains that inspite of the Presidential declaration under Article 359(1), Article 14 by itself was not suspended. Right to approach the court to enforce such Article was taken away from the concerned citizens aggrieved by any such actions violating such right. the existence and operation of the right notwithstanding. By a series of judgments of the Supreme Court, this aspect: of the matter is well settled. In the case of Makhan Singh v. State of Punjab : 1964CriLJ217 Gajendragadkar, J. (as he then was) speaking for the Constitutional Bench contradistinguished the Presidential declaration under Article 359(1) with the declaration under Article 353 and made the following pertinent observations in paras 8 and 9 of the report:
(8) Let us then revert to the question of construing Article 359. In doing so, it may be relevant and somewhat useful to compare and contrast the provisions of Articles 358 and 359. Indeed, both Mr. Setalvad and the learned Attorney General contended that Article 359 should be interpreted in the light of the background supplied by the comparative examination of the respective provisions contained in Articles 358 and 359( 1) and (2). The said two articles read as under :-x x x x
x x x x
It would be noticed that as soon as a proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article19 issue pended and the power of the legislatures as well as the executive is to that extent made wider. The suspension of Article l9 during the pendency of the proclamation of emergency removes the fetters created on the legislative and executive powers by Article 19 and if the legislature make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. As soon as the proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be in operative to the extent to which they conflict with the rights guaranteed under Article 19 because as soon as the emergency is lifted. Article 19 which was suspended during the emergency is automatically revived and begins to operate. Article 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. In other words, the suspension of Article 19 is complete during the period in question and legislative and executive action which contravenes Article 19 cannot be questioned even after the emergency is over. (9) Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for the enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which proclamation is in force or for such shorter period as may be specified in the order. What the Presidential order purports to do by virtue of the power conferred on the President by Article 359(1) is to bar the remedy of the citizens to move any court for the specified rights. The rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement. That is one important distinction between the provisions of Article 358 and Article 359(1).
12. Same view was reiterated by a later decision of the Supreme Court in the case of Union of India v. Bhanudas : 2SCR719 . Jashwant Singh, J. speaking on behalf of himself and A.N. Ray, C.J., made the following observations in para 10 of the report:
It is, however, necessary to state that there is an appreciable difference between Articles 358 and 359(1) of the Constitution. Whereas simultaneously with the declaration of emergency under Article 352, Article 358 by its own force removes the restrictions on the power of the Legislature to make laws in consistent with Article 19 of the Constitution as also on the power of the Executive to take actions which may be repugnant to Article 19 of the Constitution so long as the proclamation or emergency continues to operate but does not suspend any fundamental right which was available to a citizen under Article 19 of the Constitution prior to the promulgation of emergency-Article 359(1) empowers the President to suspend the right of an individual to move any court for enforcement of such of the rights conferred by part III of the Constitution as may be specified by him (the President) in his order. In other words, while Article358propriovigoresuspendsthefundamental rights guaranteed by Article 19 of the Constitution thus enabling the State during the period the proclamation of emergency is in operation to make laws in violation of Article 19 of the Constitution and to take Executive action under those laws despite the fact that those laws constitute an infringement of the rights conferred by Article 19. Article 359(1) of the Constitution does not suspend any fundamental right of its own force but authorises the President to deprive an individual of his right to approach any court for enforcement of any or all of the rights conferred by part III of the Constitution. In Mohd. Yaqub etc. v. The State of Jammu and Kashmir : 1968CriLJ977 , a Constitution bench of this Court consisting of seven judges inter pointed out that there is a distinction between Articles 358 and 359(1) of the Constitution. Whereas Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 35(1) of the Constitution has the effect of suspending the enforcement of specified fundamental rights so that these concepts cannot be used to test the legality of an executive action.
In Madan Mohan Pathah and Anr. v. Union of India and Ors. : (1978)ILLJ406SC , the Constitution Bench of the Supreme Court also reiterated the said settled legal position. In para 14 of the report. Beg, C.J. observed as under, in connection with Presidential declaration under Article 359(1) of the Constitution:
If the fundamental rights 'guaranteed by Articles 14 and 19 are not suspended, but their operation is only suspended, a view which I expressed in A.D.M. Jabalpur v. Shivkant Shukla : 1976CriLJ945 , the errect of the suspension is to restore the status quo ante.
13. A Full Bench of the Andhra Pradesh High Court in the case of P. Venkataseshamma v. The State of Andhra Pradesh and Ors. : AIR1976AP1 , following series of judgments of the Supreme Court on the point, speaking through Madhava Reddy, J. laid down as under:
A close reading of Article 359 would disclose that what is suspended is the right to move any court for the enforcement of the specified rights conferred by Part III and not the rights themselves. The declaration does not empower the State to make any law or to take any executive action which is violative of the rights conferred by Part III of the Constitution. .Hence even during the proclamation of emergency, if an enactment were found to be violative of any of the rights conferred by Part III of the Constitution, as are specified in the declaration that law would be void under Article 13(2) of the Constitution. But even though the law if permitted to be scrutinised by the court is found to be void under Article 13(2) for being in violation of the provisions contained in Part III of the Constitution, the court cannot declare it to be so because the right of the person who has moved the court has been suspended by a declaration under Article 359(1) made by the President for the period of Emergency. The distinction, if any between the various provisions of part III of the Constitution cannot be declared by any High Court as making any difference with regard to the right of a person to move the court during the operation of the Proclamation under Article 359(1) of the Constitution.
14. Under these circumstances, if the petitioner had sought a declaration from this Court that impugned clause 5 was violative of Article 14, he would not have been granted such declaration. However, the petitioner joined issue before the Division Bench during the currency of the Presidential declaration under Article 359(1) and contended that clause 5 should be so interpreted as to exclude ex-Govt. servant who had joined private Govt. aided college. This interpretation was not accepted by the Division Bench as seen above. At that stage, it was open to the petitioner to contend that if the interpretation canvassed by him was not accepted and contrary interpretation was accepted, the said interpretation would run counter to Article 14 of the Constitution which despite the declaration of the President under Article 359(1) was not suspended and was very much in the Constitution. Urging before the court that it should so interpret the provision of a resolution or statute as to be in consonance with operative fundamental rights and to avoid such an interpretation which would conflict with the existing fundamental right cannot be said to be an exercise which was prohibited by the Presidential order under Article 359(1). On the contrary, it was perfectly a legally permissible exercise that could be undertaken before the court interpreting the relevant resolution or statute. An argument as to how the court should interpret the resolution so as to be in harmony with the existing fundamental rights cannot be said to be an attempt to enforce any fundamental rights by the concerned petitioner. It must be kept in view that despite Article 359(1), fundamental rights mentioned in the Presidential order did not get suspended. Therefore, the court cannot be oblivious of these existing fundamental rights when it is called upon to interpret any provision of a statute or resolution. Mr. Mehta fairly concedes that it was open to the Division Bench to construe clause 5 tone way or the other. But he submitted that it was not necessary for him to submit that non-acceptance of his interpretation would render the alternative construction of clause 5 vulnerable on the touch stone of Article 14. In other words, he submitted that it was not a contention which might and ought to have been taken up by the petitioner before the Division Beach. It is not possible to agree with the aforesaid contention of Mr. Mehta for obvious 'reasons. Firstly, any contention by the petitioner that the court may so construe the provisions of the resolution as to be harmonious with the existing fundamental rights is not an argument which amounts to enforcement of any fundamental rights. It is merely a caution to the court which is called upon to interpret a statutory provision or resolution which the court is certainly bound to keep in view despite the Presidential order under Article 359(1). It must also be noted at this stage that all that the Presidential order under Article 359(1) seeks to do is to take away the locus standi of the petitioner to approach any court for enforcement of the fundamental rights mentioned in the declaration. It does not put any embargo on the powers of the court resorting to the process of interpretation of provisions of a statute or resolution which are placed for its scrutiny in any legally constituted proceedings. While doing so, it is certainly open to the court to keep in view the existing fundamental rights of the citizens which are not suspended by any Presidential declaration and to that the interpretation put by it on the relevant provision does not collide with such existing fundamental rights. In doing so, the court is not enforcing either expressly or impliedly any fundamental right at the behest of any petitioner. Process of judicial interpretation of any statutory provision or resolution in the light of existing fundamental rights is not within the prohibitory sweep of the Presidential order under Article 359(1). consequently, the plea that on the interpretation of clause 5 by the Division Bench in the earlier proceedings, enlarging the scope of operation of clause 5 so as to cover ex-Govt. servant who had joined private Government aided college, clause 5 would conflict with Article 14, is a contention which could have been urged by the petitioner in support of his alternative construction which did not find favour with the Division Bench. It was certainly open to the petitioner to point out to the Division Bench that the alternative construction would not be in harmony with Article 14 and would conflict with it. That note of caution could have been urged by the petitioner before the Division Bench and the Division Bench would have been perfectly competent to go into that question if posed and canvassed, the order of the President under Article 359(1) notwithstanding. Mr. Mehta, learned Advocate for the petitioner submitted that it was not necessary for the petitioner to canvass the alternative submission before the Division Bench to the effect that if clause 5 was interpreted to cover ex-Govt. servants joining private colleges, it would be vulnerable on the touch-stone of Article 14 and that the petitioner could rest satisfied with the interpretation canvassed by the respondents and accepted by the court in the earlier proceedings. In other words, Mr. Mehta submitted that before the principles analogous to constructive res-judicata can be pressed in service, it must be shown that such a contention might have been canvassed and ought to have been canvassed before the Division Bench. Mr. Mehta submitted that even if such a contention might have been canvassed, it was not obligatory on the petitioner to canvass such a contention. It is not possible to agree with the aforesaid submission of Mr. Mehta for the simple reason that if interpretation put up by the Division Bench on clause 5 had been replaced by the interpretation as canvassed by the petitioner in the earlier proceedings, his petition would have been fully allowed and he would have been granted P. G. scale of Rs. 700-1100. Instead be was granted lesser relief by the Division Bench only because vulnerability of the interpretation put forward by the Division Bench in the light of Article 14 was not canvassed by the petitioner before the Division Bench. It, therefore, cannot he said that such alternative contention was not germane to the main question in controversy between the parties in the earlier proceedings and was not required to be canvassed at that stage. That contention could have been canvassed and ought to have been canvassed with a view to getting full relief in the earlier proceedings. If must, therefore, be held that the present attempt of the petitioner to submit that on the interpretation of clause 5 of the impugned resolution as made by the Division Bench in earlier petition extending it to ex-Govt. servants who joined private Govt. aided colleges on superannuation, clause 5 would become violative of Article 14, is clearly barred by principles of constructive res-judicata and if entertained would amount to my going behind the finding implicitly reached by the Division Bench to the effect that clause 5 as interpreted by them is a legal and valid provision. Implicit also in this finding is the further finding of the Division Bench that there is nothing wrong with legal and effective operation of the said provision. So far as the first point is concerned, it must, therefore, be held that the present petition is barred by constructive res-judicata.
15. In view of my aforesaid finding, it would not be strictly necessary to go into the consideration of the second point. However, as the parties have joined the issue, I have thought it fit to examine the petitioner's contention on merits, assuming that such an exercise is permissible despite the Division Bench judgment of this Court in the earlier petition. Mr. Mehta for the petitioner raised the following submissions in support of his contention that clause 5 of the impugned resolution is hit by Article 14. He submitted that classification between ex-Govt. servants who joined Government aided institutions after superannuation and those ex-Govt. servants who joined Government companies and Corporations which are also State aided organizations, is based on no rational criterion and has no nexus to the object sought to be achieved thereby. He submitted that grant of P. G. scale was with a view to removing heart burning of professors and teachers teaching post graduate students in different colleges and to lessen their pains and sufferings in the days of sky rocketing prices and falling value of the rupee, one uniform P. G. scale was recommended at Rs. 700-1100 for all post graduate teachers and if persons like the petitioners are to be singled out, separate classification to that extent must stand the test of reasonableness. Clause 5 of the resolution does not stand scrutiny on this aspect. The second contention of Mr. Mehta in support of his challenge to the impugned clause 5 rested on the basis that once college teachers serve in private colleges, there cannot be any discrimination between those teachers who were previously Government servants but on superannuation. joined private colleges and their colleagues who had never joined Government service in the past. He submitted, putting emphasis on the birth marks of some of the teachers, who were ex-Govt. servants is based on no rational criterion whatsoever and it has no nexus to the objects sought to be achieved.
16. In order to appreciate these grievances of the petitioner it is necessary to keep in view the thrust of Rule 330 of the Bombay Civil Services Rules. Rule 330 of the said rules reads as under:
330. (a) A person, who is in receipt of a superannuation or retiring pension, shall not be re-employed or continue to be employed in service paid from Consolidated Fund of India or of State or from a local fund, except on public grounds and in a purely temporary capacity.
(b) The authority competent to fix the pay and allowances of the appointment in which the pensioner is re-employed shall determine whether his pension shall be held wholly or partly in abeyance. If the pension is drawn wholly or in part, such authority shall take the fact into account in fixing the pay to be allowed to him; provided that an authority subordinate to Govt. may not allow the pensioner to draw full pension in addition to the full pay of the post except when the re-employment or continued employment is for bona fide temporary duty lasting for not more than a year or the pension does not exceed ,Rs. 30/- a month, exclusive of pension equivalent of death-cum-retirement gratuity and other form of retirement benefit.
As per instruction I below the said rule, it has been provided : 'The pay to be allowed on re-employment is subject to the following conditions all of which must be satisfied:
(i) Pay on re-employment plus pension (including pension equivalent of death-cum-retirement gratuity or gratuity in lieu of pension) should not exceed the substantive pay drawn before retirement, or the officiating pay if the Government servant was continuously officiating in that post for at least one year before retirement. In cases, where the substantive/officiating pay drawn before retirement is less than the minimum of the time scale of the post in which a pensioner is reemployed, pay on re-employment may be the minimum of the time scale minus pension.
17. In view of the aforesaid rule, it is clear that if ex-Govt. servant on superannuation is re-employed by the Govt. itself, his salary on re-employment plus pension cannot exceed the substantive pay last drawn before superannuation. Mr. Mehta appearing for the petitioner stated that so far as re-employment of ex-Govt. servant in Govt. department is concerned, the aforesaid rule and the instruction can be well justified even on the touch stone of Article 14. However, submits Mr. Mehta, principle of this rule when applied to cases of ex-Govt. servants who join private colleges which are Govt. aided colleges, falters on the anvil of Article 14. On a closer scrutiny of the principle embodied in B.C.S. Rules and instruction 1 below it, it appears clear that it postulates the position that once the Govt. servant who reaches age of superannuation gets re-employed by the Government, a sort of notional extension in his service comes into existence. Consequently, he cannot claim more than the last substantive salary drawn. Hence, his pay on re-employment should be so fixed that the same when added to the pension does not exceed the last substantive pay drawn prior to superannuation. It has to be kept in view that superannuation is visited on those Govt. servants who have completed full span of active service and who are required to be rested in the interest of efficiency of the administration. If such persons are to be re-employed they in a way though get a second innings or extension of service. Under these circumstances, if their re-employment pay is not restricted as above, it might lead to demoralisation of other Govt. servants who are in active service. Govt. servants awaiting superannuation might feel frustrated as despite the fact that they are working with full zeal and energy and are still found fit to serve the Govt. they would get less than those servants who are already superannuated and re-employed by way of second chance if the latter are given higher scale or salary on re-employment exceeding their usual scale in which they were immediately prior to superannuation. Thus, with a view to maintaining administrative efficiency and goodwill in Govt. servants and with a view to avoiding any unnecessary heart-burning amongst Govt. employees, the aforesaid rule seems to have been made and it has stood the test of time. Even Mr. N. J. Mehta rightly stated that such a rule cannot be said to be violative of Article 14. However, his only grievance is that once the principle underlying this rule is extended to cover ex-Govt. servants who joined private institutions, the principle underlying the said rule collides with the guarantee of Article 14. The aforesaid contention of Mr. Mehta, is therefore, required to be examined closely. He submitted that if ex-Govt. servant joins the service in a private institution, he might get any salary by contract with private employer and there is no upper limit or restriction on such contracted salary which may be available to ex-Govt. servant. So far as this submission is concerned, there cannot be any dispute. However, the situation changes when we come to examine the cases of ex-Govt. servants who join other Govt. companies on re-employment after superannuation or who join Govt. aided Corporations or Govt. companies on one hand and private Govt. aided colleges on the other. Mr. Mehta submitted that so far as ex-Govt. servants who join Govt. companies and Corporations are concerned, the principle of B. C. S. Rule 330 is not made applicable to their cases; while it is made applicable to the cases of ex-Govt. employees who join as teachers in Government aided private colleges. This, submits Mr. Mehta is highly discriminatory and cannot be explained on any rational basis. He next contended that in any case, there is no reason to discriminate between a teacher of private college who earlier was an ex-Govt. servant and his colleague who was never an ex-Govt. servant. This is the second aspect of discrimination which cannot be countenanced by Article 14. So far as the first aspect of the matter canvassed by Mr. Mehta is concerned, it is true that ex-Govt. servant who joins Government corporation or company may not be inhibited by limitation on their re-employment salary as per the principle underlying B.C.S. Rule 330. However, one fact cannot be lost sight of viz. the Government company or Corporation is a legal entity wherein Government directly does not sink funds from out of its coffers save and except through the agency of being a shareholder. Monies which are disbursed to the employees of Government company or Corporation come out of the funds owned by these Corporations which are independent legal entities. May be, Government may be a major shareholder in such Corporations.
18. However, wages which come to the pockets of the employees are wages made available from the funds of such companies or Corporations. They do not come directly from the Government coffers though indirectly its impact may be on the Government coffers. So far as Government aided private colleges are concerned, they stand on entirely a different footing. The entire salary bill is covered by the grants made available from the Govt. coffers viz. coffers of the Central Govt. or State Govt., as the case may be. It is not disputed by the parties that so far as P. G. scale of Rs. 700-1100 is concerned, the entire amount covered by this pay scale would be paid to the teachers working in the private Government aided institutions colleges from the Govt. coffers viz. 80% coming from the Central Government and 20% coming from the State Government. All the same, this money directly flows from the Govt. treasury and private colleges though apparently employers of the concerned teachers are merely disbursing agencies. This is not the case with the employees of the Government companies or Corporations. In that view of the matter, if the principle underlying B.C.S. Rule 330 which otherwise is not obnoxious as submitted by Mr. Mehta, is made applicable to Govt. servants who on superannuation join not only Govt. service but join private colleges which are fully aided by the Government grant so far as the question of payment of salary is concerned it cannot be said that there is no rationale underlying the restriction on the fixation of re-employment salary of such ex-Govt. servants working in private fully Govt. aided colleges. The classification would stand justified on the touch stone of Article 14 as the rationale underlying the classification would be the same as exists in case of B.C.S. Rule 330 as applicable to re-employment of ex-Government servants in Govt. service itself viz. to maintain efficiency in administration, to remove heart-burning of employees and to see to it that notional extension of Govt. service gets fructified. If re-employed Govt. servant joins any Govt. department or he joins fully Govt. aided private college. notional extension of Govt. service can be broadly visualised. Consequently, for the purpose of granting P. G. scale to employees of Govt. aided private colleges, if the same yardstick is followed, then it cannot be said that it is totally arbitrary and violative of Article 14 .
19. The second aspect of discrimination as canvassed by Mr. Mehta is equally devoid if any force. It is true that in a private Government-aided college, employees who were ex-Govt. servants are treated differently for the grant of P. G. Scale as compared to employees who were not ex-Govt. servants. But they form two independent classes. So far as ex-Govt. servants are concerned, their re-employment salary is based on the rational yardstick of the principle analogous to one provided in B.C.S. Rule 330 and Instruction 1 below it. For a teacher who was never a Govt. servant, such an occasion would never arise. Hence, there is no question of equals being treated unequally. There is also no question of birth marks of ex-Govt. servants being projected while fixing their P. G. scale of salary. As once they were ex-Govt. servants, moment they enter the service of private Government aided colleges, history of their past service cannot be said to be totally irrelevant and hence if service conditions of such ex-Govt. servants carve out a separate class of such servants, who are ex-Govt. servants, it cannot be said that such a classification would falter on the touch stone of Article 14. There is a rationale behind the said classification as stated above and it has a direct nexus with the object sought to be achieved. Consequently, even the second limb of the argument canvassed by Mr. Mehta for voiding clause 5 of the impugned resolution is found to be totally devoid of any merit. Even on merits, this petition is liable to fail.
In the result, this petition fails. Rule is discharged. There will be no order as to costs in view of the facts and circumstances of the case.