JUDGMENT
A.M. Ahmadi, J.
1. The petitioner joined Government service as a Clerk with effect from 1st November, 1943. In due course he was promoted to the post of Superintendent in the Department of Agriculture when his services came to be loaned to the Gujarat Agricultural University which started functioning with effect from 1st June, 1972. While he was serving on deputation in the Agricultural University, a vacancy arose in the cadre of Legal Assistant and the petitioner being a Law Graduate and fully acquainted with departmental activities, was considered for appointment to the said post and was temporarily promoted as Legal Assistant in the scale of Rs. 350-850 (revised to Rs. 650-1200 with effect from 1st January 1973). Annexure ‘A’ to the petition is a copy of the order temporarily promoting the petitioner to the post of Legal Assistant as a stop-gap arrangement. By Annexure ‘B’ the pay of the petitioner was fixed at Rs. 525/- in the pay scale of Rs. 350-850 with effect from 7th February 1973. Subsequently the University issued an advertisement No. 19 of 1975 dated 22nd November 1975 for filling in the post of Legal Assistant on a long term basis. The petitioner applied for appointment to the said post by his application, Annexure ‘C, dated 26th December 1975. He was interviewed by the Selection Committee and on being found fit, a letter of appointment, Annexure ‘D’, came to be issued. It may be mentioned that while applying for the post of Legal Assistant, the petitioner had in paragraph 6 of his application, Annexure ‘C, stated as under:
If selected, I would accept the post of Legal Assistant in the University at pay of Rs. 920/- in the revised pay scale of Rs. 650-30-740-35-810-EB-880-40-1000-EB-40-1200 (exclusive of pension that may be admissible to me on retirement) in view of my above long standing experience and in view of the fact that I will have to let go any further liberalisation of pension rules which the Government may make in future after 1 retire from Government service.
In the letter of appointment, Annexure ‘D’, no specific mention was made to this condition set out in paragraph 6 of the application. The letter of appointment, Annexure ‘D’, however, was to the following effect:
In continuation of your interview taken on 3rd March, 1976 for the post of Legal Assistant, in this University, I am directed to inform you that this University has decided to appoint you as Legal Assistant, in this University as fresh/direct appointment.
If you are willing this University may be intimated accordingly and please take necessary steps to get yourself relieved from Government and also to take up your appointment within three months.
The petitioner conveyed his willingness to accept the appointment by his letter, Annexure ‘E’ dated 5th May, 1976 but reiterated that his pay would have to be fixed as stated in his application. After conveying his willingness to accept the appointment to the post of Legal Assistant in the Agricultural University, the petitioner served notice of retirement Annexure ‘F’ dated 24th June 1976. On expiry of the notice period, the Government was pleased to allow the petitioner to retire voluntarily from Government service with effect from 23rd September 1976 as per Rule 8 of the Revised Pension Rules, 1950, read with Government Resolution of 1st June 1976. Annexure ‘G.’ to the petition is a copy of the Office Order issued under the signature of Director of Agriculture dated 21st September 1976. After the petitioner thus voluntarily retired from Government service, a regular appointment order was issued by Registrar of the University, Annexure ‘B’, appointing the petitioner as Legal Assistant in the pay scale of Rs. 350-850 plus usual allowance as per University Rules. It was specifically mentioned in the said letter of appointment that the pay of the petitioner shall be fixed, subject to approval by the concerned authority, at Rs. 920/- per month from the date of his joining as Legal Assistant in the revised pay scale (proposed) of Rs. 650-1200. In the meantime he was permitted to draw his salary in the scale of Rs. 350-850. It was also stated in unmistakable terms that the appointment will be a fresh appointment, the terms and conditions whereof were appended thereto. Subsequently, the Board of Management at its meeting of 13th July 1976 resolved that the pay of the petitioner should be fixed at Rs. 920/- in the scale of Rs. 650-1200 with effect from 24th September 1976. The next increment was to fall on 1st September 1977. An Office Order to that effect was issued on 10th December 1976 under the signature of the Registrar, copy whereof is at Annexure T. While he was serving as Legal Assistant, the next higher post of Special Officer fell vacant at Anand. The petitioner was promoted and appointed to the said higher post carrying a pay scale of Rs. 700-1500. He was fixed in the pay of Rs. 980/- with effect from 29th April 1977 in the pay scale of Rs. 700-1500.
2. Section 41 of the Gujarat Agricultural University Act, 1969, (hereinafter called ‘the Act’), contemplates the submission of annual accounts and the balance sheet to the State Government to enable it to cause an audit thereof to be carried out by a Chartered Accountant or by an auditor appointed by the State Government in consultation with the Accountant General, Gujarat State. Sub-section (3) of Section 41 enjoins upon the Board of Management to submit a copy of the accounts and the audit report to the State Government along with the statement and the action taken by the University on the audit report. The State Government is required to cause the same to be laid before the State Legislature. In view of this provision it appears that the Junior Assistant Examiner, University Audit Circle, while reviewing the proceedings of the Board of Management in regard to the appointment of the petitioner to the post of Legal Assistant in the pay scale of Rs. 650-1200, starting at Rs. 920/- with effect from 24lh September 1976, raised an objection that his pay was not fixed in accordance with Rule 330 of the Bombay Civil Service Rules, 1959. He further directed that the reason for not fixing his pay in accordance with the said provision during re-employment and violation of the rules may be explained. He, therefore, called upon the Registrar of the University to fix the pay of the petitioner consistently with Rule 330 of B.C.S. Rules and to recover the over-payment made to the petitioner. On receipt of this audit note, Annexure ‘L’, the Vice-Chancellor’s office observed that since the appointment of the petitioner was by way of re-employment his pay was required to be fixed according to Rule 45.1 of the Gujarat Agricultural University Employees’ (Service) Rules (hereinafter called ‘the Rules’) and hence the decision of the Board of Management and the Selection Committee to concede a higher starting pay of Rs. 920/- to the petitioner under Rule 39 of the Rules was not proper. It, therefore, directed that the pay of the petitioner should be refixed consistently with Rule 330 of the B.C.S. Rules on his re-employment with effect from 24th September 1976 and regularised from time to time and over-payments to be recovered under intimation to audit. Pursuant to this direction issued by the Vice-Chancellor of the University, the pay of the petitioner was refixed at Rs. 650/- in the pay scale of Rs. 650-1200 minus pension and equivalent of death-cum-retirement gratuity with effect from 24th September 1976 and Rs. 700/-in the scale of Rs. 700-1500 minus pension and equivalent of death-cum-retirement gratuity with effect from 27th April 1977. It was further directed that on refixation the excess amount already drawn may be worked out and recovered in suitable instalments from the petitioner’s salary by the Accountant of the University at Anand. On receipt of a copy of this order the petitioner wrote to the Registrar of the University on 21st February 1979. Annexure ‘P’ pointing out that his salary could not be fixed as per Rule 330 of B.C.S. Rules as his appointment on the post of Legal Assistant in the University was a fresh appointment on a higher post carrying a higher pay scale and not on the same post or equivalent post in the pay scale of Rs. 500-900 from which he voluntarily retired. As this point of view put forward by him was not accepted by the University, the petitioner filed this petition challenging the order of the University refixing his salary at the minimum in the pay scale of Rs. 650-1200 minus pension and equivalent of D.C.R.G. on the post of Legal Assistant and Rs. 700/- in the scale of Rs. 700-1500 minus pension and equivalent of D.C.R.G. in the next higher post of Special Officer, Anand.
3. Before I proceed to set out the submissions made at the Bar, it would be advantageous to notice a few provisions of the Act and Rules. Section 7(12) empowers the University to create administrative, ministerial and other posts and to appoint persons to such posts. Section 23(1) next provides that subject to the provisions of the Act, the designations, qualifications, method of recruitment, pay, allowances and other terms and conditions of service of all employees of the University shall be such as may from time to time be determined by statutes. Section 26 empowers the Board of Management to approve the recommendations for appointment of officers, teachers and other stall of the University in the prescribed manner, meaning thereby prescribed by statutes. The power to make, amend and repeal the statutes has been conferred on the Board by Clause (t) of Sub-section (1) of Section 26 of the Act. Section 31 catalogues the matters in respect whereof statutes may be made; the statutes may provide for the powers, functions, duties, manner of appointment and conditions of service of the officers of the University other than the Vice-Chancellor, the designations, qualifications, method of recruitment, pay, allowances and other conditions of service of various categories of employees of the University and their powers, duties and the qualification and manner of appointment of teachers and other non-teaching staff.
4. The Rules, Gujarat Agricultural University Employees’ (Service) Rules, are made applicable to all employees whose conditions of service the University is competent to prescribe unless specifically provided otherwise. My attention was specifically drawn to Rules 39.1 and 45.1 which read as under:
39.1. As a rule a person appointed in the University shall be granted minimum of the time scale of the post on which he is appointed. However an authority which has got powers to create the post under the statutes may grant a pre-matured increment or increments to a University employee on the time scale of pay, provided he is not in University service at the time of appointment. The orders granting such pre-mature increments, shall specify the date of next increments.”
45.1. A pensioner who has retired from the Government/University service by taking pension and/or gratuity shall be paid on his re-employment in the University, the minimum of the pay of the post on which he is appointed, subject to rules and instructions of the Government in this regard in force from time to time.
The audit note, Annexure ‘L’, in terms states that the petitioner’s pay was required to be regularised and fixed as per Rule 330 of B.C.S. Rules. It is presumably on the basis of this stipulation “subject to the rules and instructions of the Government in this regard in force from time to time” that Rule 330 of the B.C.S. Rules was sought to be invoked in the matter of fixation of pay of the petitioner on the premise that his induction in University service was by way of re-employment. It would, therefore, be advantageous to refer to Rule 330 of the B.C.S. Rules which is pointedly referred to in the audit note, Annexure ‘L’. That Rule insofar as it is relevant for our purpose 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 Government 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….
In the present case since the petitioner had sought voluntary retirement from Government service, he was entitled to retiring pension within the meaning of Rule 251(2) of the B.C.S. Rules. Instruction 1 at the foot of Rule 330 is also of importance and may be noticed at this stage. The relevant part of that Instruction reads as under:
Instruction 1: 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 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 in case in which a Government servant is re-employed in a post from which he retired in cases where the substantive pay drawn before retirement is less than the minimum of the time scale of the post in which a pensioner is re-employed, pay on re-employment may be the minimum of the time-scale minus, pension. The term ‘substantive pay’ refers to substantive or provisionally substantive pay in a permanent post but not pay in temporary post. The expression ‘re-employed in a post from which he retired’, in this instruction should be interpreted to include any post in the same time-scale and also posts which are treated on an addition to the cadre.
On the language of Rule 330(a) of the B.C.S. Rules as understood on a reading of Instruction I, the petitioner’s induction in University service was treated as governed by Rule 330 of B.C.S. Rules read with Instruction I thereto. On this premise, pursuant to the audit note, the Vice-Chancellor of the University held that for all practical purposes the petitioner’s appointment was by way of re-employment and his salary was, therefore, required to be fixed as provided by Rule 45.1 of the Rules which would be governed by Rule 330 of B.C.S. Rules. The Vice-Chancellor was, therefore, of the opinion that it was not open to the Board of Management as well as the Selection Committee to agree to fix the petitioner’s pay at Rs. 920/- per month in the revised pay scale of Rs. 650-1200 in exercise of power conferred by Rule 39.1 since this being a case of re-employment, the pay had to be fixed as provided by Rule 330 of B.C.S. Rules so that a retired Government employee did not derive undue benefit on re-employment by the University. On this line of reasoning the petitioner’s pay was fixed at the minimum of the scale minus the pension and equivalent of death-cum-retirement gratuity with effect from 24th September 1976 in the cadre of Legal Assistant and at the minimum of the scale admissible for the promotion post of Special Officer minus pension and equivalent of death-cum-retirement gratuity with effect from 29th April 1977. It is this order, Annexure ‘O’, passed by the Registrar of the University pursuant to the Vice-Chancellor’s note, Annexure ‘N’, that is in challenge before me.
5. The crucial question which, therefore, arises for consideration is, whether the petitioner was re-employed on the post of Legal Assistant by the University after his selection by the Selection Committee. In order to understand the nature of employment it is necessary to bear in mind some of the relevant facts adverted to earlier. The petitioner was in Government service as Superintendent in the Department of Agriculture when his services came to be loaned to the University which started functioning with effect from 1st June 1972. The petitioner was, therefore, an employee of the State Government but his services were loaned to the University which needed personnel during the transitory period before it could set up its administrative machinery. While the petitioner was on deputation to the University, the post of Legal Assistant fell vacant and as the petitioner was found qualified to man that post, he was temporarily appointed to work as Legal Assistant in the scale of Rs. 350-850. This was a purely temporary and ad hoc arrangement and, therefore, the University decided to fill up the post of Legal Assistant on a permanent basis and issued an advertisement No. 19 of 1975 dated 22nd November 1975 for filling up the post on a permanent and long term basis. Naturally, on the entry of a regular appointee, the petitioner would have had to revsert to the original post of Superintendent which he was manning on deputation. The petitioner, however, applied in response to the advertisement for the post of Legal Assistant by his application, Annexure ‘C dated 26th December 1975. While forwarding the application he put forward a condition that he would accept the appointment on a regular basis in the University only if his salary is fixed at Rs. 920/- per month in the revised scale of Rs. 650-1200. He was called for interview along with others and the Selection Committee found him to be fit for appointment to the post of Legal Assistant. This was conveyed to him by Annexure ‘D’ but he was told that before joining University service, he should take steps to get himself relieved from Government. He was given time of three months to take up his new assignment. It is normal for a new employer to demand a clearance from the former employer, in the present case the Government, for the obvious reason that a person cannot serve under two masters at the same time. After the petitioner received a firm offer of appointment, he served the Government with notice for premature retirement as required by Rule 8 of the Revised Pension Rules, 1950 and claimed retiring pension under Rule 251 read with Rule 254 of the B.C.S. Rules. On retirement, in pursuance of the offer made by the University, the petitioner joined service as Legal Assistant and since the condition precedent set out in paragraph 6 of his application in response to the advertisement was accepted by the University, his salary was fixed at Rs. 920/- per month in the scale of Rs. 650-1200 with effect from 24th September 1976 vide Annexure ‘I’ dated 10th December 1976. It will appear from the above facts that at the relevant point of time when the petitioner applied for the post of Legal Assistant in response to the advertisement dated 22nd November 1975, he entered an open competition and was selected for the job after being interviewed by the Selection Committee. It is also clear that he considered the appointment to be a fresh appointment and that is why he put forward the condition that he should be given a higher start in the pay scale of Rs. 650-1200 meant for that post. On the part of the University also it is clear from the letter of offer, Annexure ‘D’ that pursuant to the recommendation of the Selection Committee, the University decided to appoint the petitioner as a fresh/direct recruit. In this background the question whether the appointment of the petitioner as Legal Assistant in the University was a fresh appointment or re-employment within the meaning of Rule 45.1 of the Rules falls for consideration.
6. It may be mentioned that so far as the University is concerned, it considered this to be a fresh/direct appointment and that is why in exercise of power conferred by Rule 39.1 of the Rules, it fixed the salary of the petitioner at Rs. 920/- per month in the scale of Rs. 650-1200. It was only because of the audit objection that the University changed its stand and considered the appointment of the petitioner as reemployment within the meaning of Rule 45.1 of the Rules. On the application of Rule 45.1 of the Rules, Rule 330 of B.C.S. Rules and the Instructions thereunder came to be invoked. Now if we rum to Rule 330 extracted earlier, we find that a person in receipt of superannuation or retiring pension cannot be re-employed or continued in employment except on public grounds and in a purely temporary capacity. In other words, a person can be re-employed only if the re-employment is for a temporary period and is necessary on public grounds, meaning thereby, public interest. The concept of public ground or public interest is not capable of a precise definition for the simple reason that it may take colour from the context of the provision and the fact situation but that does not mean that it is a vague and arbitrary concept. In the context of Rule 330 of B.C.S. Rules it would mean that a person who has retired from Government service and is in receipt of superannuation pension or retiring pension can be re-employed if his services are necessary for a short period in public interest. The Rule does not contemplate a long term appointment on a substantive post which could be filled in in normal manner. Circumstances must, therefore, exist which would make it virtually obligatory on the employer to re-employ a pensioner for a short duration so that administration is not adversly affected. If immediate arrangements cannot be made or if a person of the right stamp to man the post is not readily available and the post cannot be kept vacant without adversely affecting administration, the employer may resort to re-employment in public interest. In such cases if the post is not manned it would create administrative problems which would adversely effect public interest. It is only in such cases that reemployment can be resorted to under Rule 330 of the B.C.S. Rules. This also becomes clear when we read Instruction 1 to the said Rule which indicates how the pay of a re-employed pensioner shall be fixed. That Instruction states that pay on re-employment plus pension should not exceed the substantive pay drawn before retirement or the officiating pay in case in which a Government servant is re-employed in a post from which he retired. The emphasised words have to be interpreted to include the post in the same time scale as well as posts which are treated as additions to the cadre. This rule also lends support to the argument that re-employment must be to the same post or a post belonging to the same lime scale or which is a mere addition to the carde and not to a post which is an independent post in a higher lime scale.
7. The petitioner was serving as a Superintendent in the Department of Agriculture when his services were loaned to the University after it started functioning with effect from 1st June 1972. The order of the Director of Agriculture, Gujarat State, dated 21st September 1976, Annexure “G”, shows that the petitioner was permitted to retire from the post of Office Superintendent in the Directorate with effect from 23rd September 1976 under Rule 8 of the Revised Pension Rules read with Government Resolutions of 8th October 1970 and 1st June 1976. It is, therefore, clear that the petitioner was treated as holding the substantive post of Office Superintendent when he was permitted to voluntarily retire from Government service. The post of Office Superintendent was in the scale of Rs. 500-900 and was, therefore, a lower post as compared to the post of Legal Assistant in the scale of Rs. 650-1200. It could not, therefore, be said that the petitioner was reemployed in a post from which he retired within the meaning of Instruction 1(i) to Rule 330 of B.C.S. Rules. Besides, the regular appointment of the petitioner to the post of Legal Assistant was not by way of a temporary arrangement but was of a long term nature. It was not as if having regard to the qualifications and experience of the petitioner the University decided to re-employ him on short term basis as Legal Assistant because that was not necessary since he was already working as Legal Assistant on ad hoc basis before the post was advertised to be filled in on regular basis. It would have been a different thing if a pensioner was offered the post as a short term arrangement having regard to his qualifications and experience till a regular appointee could be found. On the contrary, the post was advertised to be filled in on regular basis and the petitioner competed with others, appeared at the interview and was ultimately selected by the Selection Committee for filling in the post on long term basis. It was only after the University agreed to appoint him on long term basis at the salary of Rs. 920/- in the scale of Rs. 650-1200 that the petitioner sought voluntary retirement from Government Service. It was also because the University had by its letter of offer Annexure ‘D’ called upon him to ‘take necessary steps to get yourself relieved from Government’ that the petitioner served notice seeking voluntary retirement. In the case of reemployment as understood in service parlance, there would be no question of the incumbent competing with others for the post but his services would be requisitioned having regard to his qualifications and experience as a stop gap arrangement till a candidate suitable to man the post was available. Viewed in this context it is difficult to agree with the University authorities that the appointment of the petitioner to the post of Legal Assistant pursuant to his selection by the Selection Committee amounted to ‘re-employment’ within the meaning of Rule 45.1 of the Rules. Rule 45.1 is to be read in conjunction with Rule 330 of B.C.S. Rules and Instruction thereunder since in the present case the University has invoked the provisions of the latter Rule for passing the impugned order refixing the salary of the petitioner. I am, therefore, of the view that the initial stand of the University that the petitioner’s appointment was a fresh/direct appointment and his pay could be fixed by granting certain advance increments at Rs. 920/- in the scale of Rs 650-1200 by virtue of Rule 39.1 of the Rules was correct.
8. The expression ‘re-employment’ when cunstrued in the above context can only mean re-employment in the same post or cadre carrying the same pay scale from which the Government servant voluntarily retires. According to Corpus Juris Secundum, Volume LXXVI (76 C.J.S. Release 32) the expression ‘re-employment’ means the re-employment in the same service in which a person had formerly been employed. In the context of Section 25-H of the Industrial Disputes Act, the Supreme Court in Cawnpore Tannery Ltd. v. Guha (S) and Ors. 1961 (II) L.LJ. 110 approved the principle that re-employment could be in the same category to which the retrenched employee belonged. In that case the employee Guha was working as as Assistant Store Keeper when he was retrenched from service, After his retrenchment the management filled in three posts belonging to the clerical cadre without inviting Guha for re-employment to anyone of the said three posts. Guha complained that he had been wrongly and unjustifiably kept out of re-employment even though vacancies had arisen in the clerical cadre to which be originally belonged. The management contended that Guha held the post of Assistant Store Keeper at the date of his retrenchment and since the vacancies were in the cadre of Clerks, the management was not bound to offer him reemployment. This submission was dealt with as under:
It is then urged that the principle of industrial adjudication on which the respondents rely cannot require the appellant to offer to Guha a job unless the said job belongs to the same category to which Guha belonged. On principle, Sri Sen may be right in assuming that the offer would be conditioned by the consideration of the category to which the retrenched employee belonged.
9. The Supreme Court, however, reached the conclusion that Guha belonged to the clerical category and upheld the Tribunal’s order. The above observations clearly lend support to the contention that in order that the appointment can be termed ‘re-employment’ it must be shown that it belongs to the same category of posts/cadre which the incumbent held at the time of retirement. The Patna High Court in Bihar Sugar Works v. S.G. Prasad 1969 (2) L.I.C. (Labour & Industrial Cases) 1430 also held that ‘reemployment’ within the meaning of Section 25-H of the Industrial Disputes Act imports the significance of taking back a retrenched workman in the same category to which he belonged. Where a retrenched workman is not employed in the same category of work to which he belonged before retrenchment, Section 25H cannot apply. These two decisions also lend support to the view to which I am inclined on a reading of Rule 45.1 of the Rules read with Rule 330 of B.C.S. Rules and Instructions thereto.
10. In view of the above, I hold that the decision of the University refixing the salary of the petitioner pursuant to the audit objection is not in conformity with the relevant rules. The impugned order, Annexure ‘0’ passed pursuant to the note of the Vice-Chancellor is quashed and set aside and so also the order, Annexure ‘Q’ dated 3rd May 1979 passed by the Vice-Chancellor is also quashed and set aside. If any deductions have been made from the salary of the petitioner pursuant to the impugned orders. Annexures ‘O’ and ‘Q’, the same shall be restored to the petitioner within three months from today. The rule is made absolute accordingly with costs.