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1996(4) Supreme 519
SUPREME COURT OF INDIA
B.P. Jeevan Reddy and S. Saghir Ahmad, JJ.
State of Punjab & Ors. -Appellants
versus
Tara Singh Shahi -Respondent
Civil Appeal No. 1507 of 1996
Decided on 17-4-1996
Held : It is pointed out that since respondent was M.A. Second Division with 52% marks, he was not qualified to be appointed to the post of Principal as the qualification required for appointment on that post was "M.A. First Division" or High Second Division (55%)". It is thus apparent that respondent not being qualified for appointment to the post of Principal could not legally claim such appointment nor was it possible for the High Court to have issued a Mandamus that the respondent be appointed or absorbed on that post. Articles 14 & 16 which contain the Rule of Equality do not envisage that a person who is not qualified for appointment can still claim such appointment merely on the basis of Fundamental Rights available under Articles 14 and 16. He cannot, in fact, invoke the provisions of those Articles as he has first to possess the essential qualification before invoking the Rule of Equality. The finding of the Single Judge of the High Court that the respondent possessed the requisite qualification is, therefore, erroneous. The Division Bench also was in error in confirming the findings though it had not expressly adverted itself to this question. (Para 15)
JUDGMENT
S. Saghir Ahmad, J.-Guru Nanak College at Gurdaspur was a private institution affiliated to Guru Nanak Dev University. Respondent was appointed as Principal of the college by a resolution of the Managing Committee adopted on 27th of May, 1975. His appointment was approved by the Vice Chancellor on 30th of June, 1975 and thereafter he was confirmed on that post with effect from 31st of May, 1976.
2. Guru Nanak College, as also three other colleges were proposed to be taken over by the Government under its Memo dated 30th of September, 1982 on the condition that only those staff members who possessed the requisite qualifications would alone be adsorbed and that too as "new entrants" while the Principal of the college would be brought in a senior-most lecturer and not as Principal. This Memorandum was considered by the Managing Committee of the college in its meeting held on 18th of May, 1983 and was approved. Consequently, a gift deed dated 11th of July, 1983 was executed between the management of the college and the State Government in which the management was described as donors and it was provided, inter alia, as under:-
1. In pursuance of the said agreement, the donors hereby transfer to the Govt., by way of gift all the properties in the form of buildings, fields, gardens staff quarters, lands, equipments, furniture, library books, science apparatus and other assets etc, at present attached with the college or standing in the name of the college as are specified in Schedule A including the right of college management and control of the Guru Nanak College, Gurdaspur District, Gurdaspur to have and to hold the same to the Government absolutely for ever.
2. ....
3. ....
4. It is agreed that Government shall not accept any liability or responsibility for the period prior to the taking over of the college by them. All such liabilities shall be cleared by the Managing Committee of the college concerned.
5. It is agreed that the college on being taken over by the Government should not be over-staffed and only such staff will be kept as is justified on the basis of actual workload in accordance with the prescribed norms for different categories of staff. Confirmed and regularly appointed staff through prescribed channels and approved by the University/department will be taken on ad hoc basis subject to the approval of the Punjab Public Service Commission where applicable.
6. It is agreed that such members of the staff of the college as fulfil necessary qualifications and are considered suitable for absorption in Government service by the P.P.S.C. Subordinate services selection Board/Departmental Committee shall only be taken over in Government service and then treated as new contracts. But the Principal will be taken over only as senior most lecturer of the concerned college. The Government scale in respect of respective categories shall be permissible to them and there shall be no personal grade for any one. Their pay in the Government scale will be fixed on the basis of their length of service in equivalent/identical or higher time scale. There shall be no guarantee in regard to protecting their existing pay and allowances or any other per fitness.
7. It is further agreed that the staff, subject to their suitability may be regularized but shall, however, be subject to the conditions laid down in clause 8.
8. It is agreed that the members of the staff will be treated as fresh entrants and they will be placed at the bottom of the old Government employees in their respective cadre including the principal who will be adsorbed as senior most lecturer intense of the concerned college."
3. In pursuance of the aforesaid gift deed, the staff member of the college were absorbed in Government service and the respondent who, prior to the taking over of the college by the Government, was working as Principal, was brought in as senior-most lecturer.
4. The respondent wanted to be absorbed as Principal of the college and since it was n
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