PETITIONER:
BANARAS HINDU UNIVERSITY, VARANASI AND ANR.
Vs.
RESPONDENT:
DR. INDRA PRATAP SINGH
DATE OF JUDGMENT24/01/1992
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
SHARMA, L.M. (J)
RAMASWAMI, V. (J) II
CITATION:
1992 AIR 780 1992 SCR (1) 360
1992 SCC Supl. (2) 2 JT 1992 (1) 320
1992 SCALE (1)185
ACT:
University Grants Commission-Merit Promotion Scheme-
Para 2 (a)-Object and scope of.
University-Lecturer-Promotion as Reader-Requirement of
"eight years continuous service"-Appointment as temporary
lecturer in Banaras Hindu University-Gap of 3 months and 20
days in service-Appointment as Reader in Nagpur University-
Reappointment as permanent Lecturer in Banaras Hindu
University-Claim for promotion as Reader held sustainable-
Held para 2 (a) recognizes eight years service in more than
one University-Gap in service held of the nature
contemplated by para 2 (a)- Service rendered in Nagpur
University held liable to be counted towards eight year's
service.
HEADNOTE:
With a view to providing an incentive to teachers,
preventing stagnation and also for improving their
efficiency the University Grants Commission evolved a scheme
called "Merit Promotion Scheme". On being selected under
the said scheme a lecturer is designated as Reader and
becomes entitled to a higher pay scale. One of the
conditions under the scheme which a lecturer must satisfy
before he becomes entitled to promotion is eight year's of
continuous service of which at least four years should be in
the institution where he is being considered for promotion.
The respondent was appointed as a lecturer by the
appellant-University, on temporary basis, on 26.8.1974 in
the Department of Basic Principles in the Institute of
Medical Sciences for a period of eleven months. At the end
of eleven months, he was re-appointed on the same basis for
a further period of eleven months. By means of such
appointments he served as a temporary Lecturer from
26.8.1974 till 31.3.1980. There was no re-appointment
thereafter and from 1.4.80 to 20.7.80 he remained without a
job. On 21.7.80 he was appointed as a Reader in the Nagpur
University where he served till 20.9.82. On 22.9.82 he was
appointed as a permanent lecturer in the appellant-
University in the same Department where he worked earlier
361
temporarily and his salary was fixed by giving him fourteen
increments so as to protect his last pay drawn at Nagpur.
In 1983 the respondent claimed promotion under the
Merit Promotion Scheme but the University rejected his case
on the ground that he does not satisfy the requirement of
eight years' of continuous service in the cadre because
there was a break in his service between 1.4.80 to 20.7.80
and that his service in the Nagpur University cannot be
counted.
The respondent filed a writ petition in the High Court
and pursuant to an interim order passed by the High Court
the respondent's case was considered by the Selection
Committee and the decision of the Committee was kept in a
sealed cover.
The High Court allowed the petition by holding: (i)
that the respondent's service in the Nagpur University was
liable to be counted towards the eight years' continuous
service because para 2 (a) of the scheme expressly
recognizes service in more than one University; (ii) a long-
standing practice of the University was to condone the
breaks in service in such cases. Consequently the High Court
quashed the University's order rejecting respondent's
application and directed the University to place
recommendations of the Selection Committee before the
Executive Council and to promote him as Reader if he was
approved by the Executive Council.
The University filed an appeal in this Court contending
that (i) the High Court erred in holding that the re
spondent satisfied the requirement of eight years'
continuous service; (ii) the power of the University to
condone short breaks in service was exercised in cases only
where the delays in reappointment were caused by procedural
delays in the office of University; (iii) there was a
definite break in the respondent's service and such a break
has never been condoned by the University.
On behalf of the respondent it was contended that para
2 (a) of the scheme recognizes a teacher serving two or more
Universities for the purposes of "continuous eight years"
service; (ii) the requirement of continuous service should
be understood having regard to the underlying aim and
object; (iii) In many other cases the University has
condoned similar breaks and refusal to do so in his case was
arbitrary and discriminatory.
362
Dismissing the appeal, this Court,
HELD: 1. The expression "continuous service" has no
single unalterable meaning and its content varies having
regard to the context. [368-C]
Jeevan Lal Ltd. v. Its workmen, [1962] 1 S.C.R. 717;
referred to.
"Words and Phrases" Vol. 9; referred to.
2. The expression "eight years of continuous service"
in para 2 (a) of the scheme should be understood in a
reasonable manner having regard to the underlying aim and
object. In understanding and construing the said expression
the object underlying the said requirement should be taken
into consideration. The object behind para 2 (a) of the
scheme is to ensure that a teacher does have eight years'
teaching experience. [366 F, H, 367-A]
2.1.Para 2 (a) of the Merit Promotion Scheme itself
expressly recognizes that the eight years' service may be in
more than one institution, the only requirement being a
minimum of four years service in the institution where he is
being considered for promotion under the scheme. In case of
shift from one University to other or from one institution
to the other it can reasonably be presumed that there is
bound to be some interval. The interval may be of a day, a
week or a month. What is relevant is not the length of the
interval or break, as it may be called, but its nature.
However, the length of such interval is not totally
irrelevant; but one must take into consideration the reason
for which break, or the circumstances in which such break,
has occurred. [366 F-H]
2.2 The gap in the respondent's service is of the
nature contemplated by para 2 (a) of the scheme. True it is
that it is a bit too long but even so in the light of the
circumstance that the respondent was reappointed on a
permanent basis, on the very same post, in the very same
department, the length of the said break pales into
insignificance. [369 B-C]
3. It is also evident from record that in case of other
two teachers who had not completed eight years' service by
the prescribed date the Vice-Chancellor and the Executive
Council decided to extend the eligibility period till the
date of interview so as to make them eligible for
consideration which shows that the University
363
has been passing appropriate orders wherever the justice of
a case demanded. The same treatment ought to have been
extended to the respondent, in all the circumstances of the
case. [370 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of
1988.
From the Judgment and Order dated 22.12.1987 of the
Allahabad High Court in Civil Misc. Writ Petition No. 3396
of 1985.
M.L. Verma, L.R. Singh, Vikas Singh and Yunus Malik for
the Appellants.
P.P. Rao, T.N. Singh, B.M. Sharma and S.N. Singh for
the Respondents.
The Judgment of the Court was delivered by
B.P JEEVAN REDDY, J. This Civil Appeal is preferred
against the judgment and order of a Division Bench of the
Allahabad High Court allowing the writ petition filed by the
respondent Dr. Indra Pratap Singh.
The respondent was appointed as a lecturer by the
appellant-University, on temporary basis, on 26.8.1974 in
the department of Basic Principles in the Institute of
Medical Sciences. His appointment was effective for a
period of eleven months. At the end of eleven months, he
was reappointed on the same basis for a further period of
eleven months. By means of such appointments, he was
continued upto 31.3.1980. There was no re-appointment
thereafter. On 21.7.1980, the respondent was appointed as a
Reader in Sri Ayurved College of the Nagpur University. He
worked there till 20.9.1982. On 22.9.1982 he was appointed
as a lecturer in the appellant-University in the very same
department, on a permanent basis. On this occasion his
salary was fixed giving him as many as fourteen increments
so as to protect his last drawn pay at Nagpur.
Banaras Hindu University is a Central University. It
is entirely funded by the University Grants Commission
(U.G.C.). The U.G.C. had evolved a scheme called `Merit
Promotion Scheme’ with a view to provide an incentive to
teachers, to prevent stagnation and also to improve their
efficiency. One of the conditions which a lecturer must
satisfy before he becomes entitled to promotion is eight
years’ continuous service. Clause (a) of para 2 of the
Scheme which provides for the said qualification reads thus:
364
“2(a). Teacher in the University departments
engaged in advance teaching and research and whose
contribution and achievements are such as to merit
recognition must be considered for merit promotion
in the first instance after completing eight years
of continuous service in their respective cadre, of
which at least four years should be in the
institution where he/she is being considered for
such assessment and merit promotion.”
On being selected under the Merit Promotion Scheme a
lecturer is designated as Reader and becomes entitled to a
higher pay scale. The selection under this scheme has to be
made by the University concerned no doubt in accordance with
the criteria evolved by the U.G.C.
The respondent applied for being selected under said
scheme in the year 1983. The University, however, was of
the opinion that he is not eligible for being considered
inasmuch as he does not satisfy the requirement of eight
years’ continuous service in the cadre. The objection was
that there was a break in his service between 1.4.1980 and
20.7.1980 (both days inclusive) which means that his
continuous service can be counted only from 21.7.1980. If
so calculated, he does not satisfy the said requirement by
the year 1983. Another objection raised by the University
was that the service rendered by the respondent in the
Nagpur University cannot be counted. The respondent’s case,
however, was not only that his service at Nagpur is liable
to be counted but that the university was competent to and
ought to condone such breaks in service and that indeed it
has condoned such breaks in service in the case of other
teachers. Refusal to do so in the case of respondent, it
was submitted, was discriminatory and arbitrary.
In view of the stand taken by the University, the
respondent approached the Allahabad High Court by way of
Civil Miscellaneous Writ Petition No. 3396 of 1985. At his
instance the High Court made an interim order directing the
University to place the petitioner’s case before the
Selection Committee (constituted for the purpose of
selection under the said scheme).
According to the counsel for the University, the
respondent’s case has accordingly been considered and the
decision of the Selection Committee kept in a sealed cover.
The matter has not yet been placed before the Executive
Council of the University which is the final authority in
the matter of selection under the scheme, says the counsel.
The High Court has allowed the writ petition on the
following reasoning:
365
a long-standing practice in vogue in the University is to
condone breaks in service in such cases. Refusal to condone
the break in service in the case of the respondent, more so
when he was given extra increments at the time of his
permanent appointment as a lecturer in this University in
the year 1982 (with a view to bring his salary on par with
the salary he was drawing as a reader in the Nagpur
University) is not justified. The service rendered by the
respondent in the Nagpur University is also liable to be
counted towards the eight years’ continuous service. Indeed
para 2 (a) of the Scheme expressly recognizes service in
more than one University. In as much as the respondent’s
case has already been considered by the Selection Committee
in pursuance of the interim orders, his case should now be
placed before the Executive Council and if he is found
suitable he should be entitled to promotion/Selection under
the scheme with effect from the same date from which other
teachers of the University interviewed for the first round
of promotion were appointed. The operative portion of the
judgment reads thus:
“In the result, the writ petition succeeds and is
allowed. The orders of the University rejecting
applications of the petitioner for condoning break
in service and for being considered for merit
promotion are quashed. The University is directed
to place the recommendation of the Selection
Committee before the Executive Council in its next
meeting. It is further directed to appoint the
petitioner on the post of reader in the Department
of Basic Principles in the Institute of Medical
Sciences of the University, if he has been selected
for promotion by the Selection Committee and its
recommendation is approved by the Executive
Council with effect from the same date from which
other teachers of the University interviewed for
first round of promotions were appointed. We
direct the parties to bear their own costs.”
The principal contention urged by the learned counsel
for the petitioner-University is that the Court was in error
in holding that the respondent satisfied the requirement of
eight years’ continuous service. The counsel did not
dispute the power of the University to condone short breaks
in service, but such power, he said, was exercised in cases
only where the delays in re-appointment were caused by
procedural delays in the office of the University. There
has been no case, he submitted, where the University
condoned the break in service of the nature concerned,
herein. The respondent left this University, remained out
of job for a period of three months 20 days and then was
appointed as a Reader in the Nagpur University. This is a
definite break in service and such a break has
366
never been condoned by the University. The counsel,
however, did not urge before us that the service rendered by
the respondent in the Nagpur University should not count
towards the eight years’ qualifying service. On the other
hand, learned counsel for the respondent supported the
judgment of the High Court on the following reasoning: Para
2 (a) of the scheme recognizes a teacher serving two or more
Universities during the said period of eight years, the only
requirement being that at least four years out of it should
be in the institution where he is being considered for
promotion/selection under the said scheme; the requirement
of eight years’ continuous service must be reasonably
understood having regard to the underlying aim and object;
where a teacher serves two or more Universities during the
said period, it can reasonably be presumed that there will
be breaks in his service, whether the break is of a day, a
week, a month or a couple of months, it is unlikely-
ordinarily speaking-that a teacher gets re-employment in
another University and joins there on the very next day of
his being relieved from the first University. The object
behind para 2 (a) of this scheme is to ensure that a teacher
does have eight years’ teaching experience. Moreover, in
the case of this very respondent there were gaps of about a
week or so on every occasion he was re-appointed prior to
1980; the University never treated them as breaks in
service.Above all, at the time of his permanent appointment
in the year 1982 he was given a large number of increments
both in view of his past service in the University and also
with a view to protect his last pay drawn in the University
at Nagpur. In many other cases the University has condoned
similar breaks of two to three months; refusal to do so in
the case of the respondent is arbitrary and discriminatory.
We agree with the learned counsel for the respondent
that the expression “eight years of continuous service”
in para 2 (a) of the scheme should be understood in a
reasonable manner having regard to the underlying aim and
object. Para 2 (a) itself expressly recognizes that the
eight years’ service may be in more than one institution,
the only requirement being a minimum of four years service
in the institution where he is being considered for
promotion under the scheme. In case of shift from one
University to other-or from one institution to the other-it
can reasonably be presumed that there is bound to be some
interval. The interval may be of a day, a week or a month.
What is relevant is not the length of the interval or break,
as it may be called, but its nature. We do not mean to say
that length of such interval is totally irrelevant; what we
mean, however, is that one must take into consideration the
reason for which break or the circumstances in which such
break-has occurred. Another factor to be taken into
consideration in understanding and construing the said
expression
367
is the object underlying the said requirement. According to
us, the object is to ensure eight years’ teaching
experience. It is true that there is a break of three
months 20 days in the respondent’s service and teaching
experience. We also take note of the fact that it was not
the vacation time for academic institutions. But this
circumstance must be weighed against a counter-vailing
circumstance in favour of the respondent viz., his re-
appointment on a permanent basis in the very same department
in the University in the year 1982. As stated above, he
served as a temporary lecturer from 26.8.1974 till
31.3.1980. From 1.4.1980 to 20.7.1980 remained without a
job. On 21.7.1980 he was appointed as a Reader in the
Nagpur University-in the very same subject-where he served
till 20.9.1982. On 22.9.82 he was appointed as a permanent
lecturer in this very University and in the same category
and subject. On this occasion, he was granted a good
number of increments. The University says that these
increments were granted with a view to protect his last pay
drawn by him in the Nagpur University while the respondent
says that it was granted not only for the said purpose but
also in the light of his past service in this University.
It is true that he was not given seniority since 26.8.1974.
Even so the question is whether the gap of three months 20
days is such a long gap as not to merit condonation- or for
that matter to be termed as a break in service for purposes
of para 2 (a) of the scheme.
In Jeevan Lal Limited v. Its Workmen, [1962] 1 S.C.R.
717, the expression “continuous service” fell for
consideration of this court. The employee joined the
appellant’s service as a workman in 1929 and resigned in
1957. During this period he remained absent from duty
without permission or leave for nearly eight months between
February, 1945 to October, 1945. Under an award made
between the employer and the workmen, a scheme was framed
wherein the concerned clause was that “on voluntary
retirement or resignation of an employee after fifteen years
continuous service, gratuity at the same rate as above” was
payable. The question was whether the respondent-workman
satisfied the requirement of 15 years’ continuous service.
Gajendragadkar, J. speaking for the Division Bench held in
favour of the workmen on the following reasoning:
“……there can be no doubt that in a different
context the same words can and often have
different meanings. As this Court has observed in
Budge Budge Municipality v. P.R. Mukherjee, “the
same words may mean one thing in one context and
another in different context. This is the reason
why decisions on the meaning of particular word or
collection of words found in other statutes are
scarcely of much value when
368
we have to deal with a specific statute of our own;
they may be helpful but cannot be taken as guides
or precedents”…….”Continuous service” in the
context of the scheme of gratuity framed by the
tribunal in the earlier reference postulates the
continuance of the relationship of master and
servant between the employer and his employees. If
the servant resigns his employment service
automatically comes to an end. If an employer
terminates the service of his employee that again
brings the continuity of service to an end. If the
service of the employee is brought to an end by the
operation of any law that again is another instance
where the continuance is disrupted; but it is
difficult to hold that merely because an employee
is absent without obtaining leave that itself would
bring to an end the continuity of his service.”
This decision does emphasises the fact that the said
expression has no single unalterable meaning and that its
content varies having regard to the context.
In “Words and Phrases” Vol.9,, the word “continuous
employment” is assigned the following meaning:
“It means working with reasonable regularity, and
work does not cease to be “continuous” because of
interruptions in occupation due to periods of
temporary illness, such as are incident to people
of normal health. “Continuously”, as used
in regulations defining total permanent disability
under war risk policy, does not denote absolute
continuity.”
Again, the word “continuous service” is given the
following meaning:
“Phrase “continuous service”, as contained in
collective bargaining agreement, had to be viewed
in light of terms of agreement which provided for
work schedule of eight hours per day for a five-day
week, Monday to Friday, inclusive and, therefore,
one working regular prescribed hours of labour
would be rendering “continuous service” within
agreement even though not working on Saturdays or
Sundays or more than eight hours in any 24.”
The above two meanings, among the several set out
therein, are in our opinion contextually relevant. We are
also of the view that a literal interpretation of the said
words is ruled out by the context, as the preceding
discussion shows.
The counsel for the University has conceded that on
several occasions
369
prior to 31.3.1980, there were gaps of a week or so in
issuing reappointment order on temporary basis. He says
that these delays were in the nature of ministerial delays,
and therefore, they were condoned but so far as the gap
between 1.4.1980 and 20-7-1980 is concerned he says it is of
an altogether different nature inasmuch as the respondent
left this University and joined another University. But as
we have stated hereinbefore, para 2 (a) itself expressly
recognizes the said eight years’ service having been put in
more than one University. The present gap is of that
nature. True it is that it is a bit too long but even so in
the light of the circumstance that the respondent was
reappointed on a permanent basis, on the very same post, in
the very same department, the length of the said break pales
into insignificance. We are persuaded to believe that the
said increments must have been granted taking into account
his past service for a period of six years in this
University as well.
The respondent has brought to our notice several
instances where the University has condoned breaks of two
months or more in the case of other teachers. We do not,
however, think it necessary to examine those cases except
two. One Dr. L.K. Panda was a teacher in the department of
Ob. and Gyn. in the Institute of Medical Sciences of this
University. He was appointed temporarily in 26.5.1973 and
resigned on 5.2.1975. He was said to be out of job between
5.2.1975 and 27.4.1975 (for a period of two months 22 days).
He was re-appointed as a lecturer in this University on
temporary basis on 28.4.1975, and on a permanent basis on
16.10.1978. The respondent’s case is that the University
has condoned the said gap of two months 22 days in his case
and if so there is no reason why the gap on three months 20
days in the case of respondent should not be condoned. The
University has, however, explained in its counter affidavit
that no such condonation was made in his case and that his
service was counted only from 28.4.1975. But if his service
is counted from 28.4.1975 only, it is significant to notice,
he does not complete eight years service by 15.1.1983 which
was the last day of applying-vide University proceeding
dated 11/21 December, 1982. The other case is of Dr. A.M.
Tripathi who was a teacher in the department of Pediatrics
in the Institute of Medical Sciences of this University. He
was appointed temporarily on 11.5.1974. According to the
respondent, he resigned on 12.8.1975 and was out of job
till 24.8.1975 when he went to Kabul. According to him, he
served at Kabul in a non-teaching capacity from 25.8.1975 to
8.4.1976 and he was re-appointed as a lecturer in this
University on temporary basis on 9.4.1976 and made permanent
on 9.2.1979. The respondent says that the entire gap
between 12.8.1975 to 8.4.1976 was condoned by the University
for considering his case under the scheme. The appellant’s
case, however, is different. According to the appellant-
University, he was sent to Kabul on
370
deputation and that the break in his service occurring
prior to his going to Kabul has never been condoned. We
find that in the rejoinder-affidavit of the University filed
in this court, there is a certain mix-up of the relevant
dates in the case of these two teachers. Be that as it may,
its case appears to be that services of these two were
counted only from the date of their re-employment. Then
the following significant statement occurs in the rejoinder-
affidavit filed in this court:
“It is true that by 15.1.1983 he had not completed
8 years of continuous service in the same cadre.
However, in the meanwhile the vice-chancellor as
also the Executive Council decided that eligibility
period of candidature for appointment to teaching
posts under Merit Promotion Scheme be counted as on
the date of interview, as per existing practice
for regular appointments in view of the fact that
the Executive Council treats posts in both
categories on a par with each other. Accordingly
since Dr. Tripathi had completed 8 years of
continuous service in the same cadre by the date of
interview on 23.6.1983, he was eligible and was
selected by the statutory Selection Committee.
Applying the very same principal which was
approved by the Executive Council, Dr. L.K. Pandey
became eligible and was selected. ”
In our opinion, the above statement in the rejoinder-
affidavit filed by the University is very revealing. It
shows that even though the said two teachers had not
completed eight years’ service by the prescribed date i.e.
by 15.1.1983, the Vice-chancellor and the Executive Council
decided to extend the eligibility period till the date of
interview so as to make them eligible for consideration. We
are not suggesting any malafides or any unreasonable conduct
to the University. All that we are saying is that the
University has been passing appropriate orders wherever the
justice of a case demanded. In our opinion, the same
treatment ought to have been extended to the respondent, in
all the circumstances of the case.
For the above reasons, the appeal fails and is
accordingly dismissed No orders as to costs.
T.N.A. Appeal dismissed.
371