Bombay High Court
Harichandra Jethmal Gandhi And Ors. vs State Of Maharashtra And Ors. on 29 July, 1994
JUDGMENT H.W. Dhabe, J.
1. Common, and the only, question involved in these four writ petitions is whether the service rendered by the petitioners therein who are lecturers as Demonstrators or Tutors in which posts they were previously working can be computed in considering the question of their placement in posts of Lecturer (Senior Scale), Lecturer (Selection Grade), and the post of Reader in implementing the G.R. dated 27.2.1989 relating to revision of pay-scales of the teachers of the University and the affiliated Colleges issued by the State Government. These four writ petition can thus be disposed of by this common judgment. We shall, however, consider the facts and deliver the judgment in writ petition No. 927 of 1991, by which the other writ petitions would be governed, since the basic facts in all these writ petitions are the same.
2. The facts in Writ Petition No. 927 of 1991 are that the petitioners therein, numbering 45, were originally appointed in the Colleges affiliated to Nagpur and Amravati Universities as Demonstrators or Tutors. By the G.R. dated 25.10.1977, the posts of Demonstrators and Tutors held by persons who possessed the requisite qualifications for the post of lecturers were upgraded as Lecturers w.e.f. 1.7.1975. At the time when the above G.R. dated 25.10.1977 was issued, the Colleges in which the petitioners were working were all affiliated to Nagpur University as the Amravati University was established lateron in 1983 for Amravati, Akola, Yeotmal and Buldana districts of Vidarbha which were originally within the jurisdiction of Nagpur University. It is not in dispute that the petitioners were all upgraded as Lecturers w.e.f. 1.7.1975 as per the aforesaid G.R. dated 25.10.1977 since they all possessed the requisite qualifications for the post of lecturer.
3. It may be seen that the existing pay scale of the Demonstrator or Tutor at the time when G.R. dated 25.10.1977 was issued, was Rs. 250-15-400 which was revised to Rs. 500-20-700-25-900 as per the aforesaid G.R. dated 25.10.1977. As regards the post of Lecturers, there were three categories of Lecturers viz. (Junior Scale), Lecturer (Senior Scale) and Lecturer (Selection Grade) for whom there existed three different pay-scales at the time when the G.R. dated 25.10.77 was issued. However, by the G.R. dated 25.10.1977, a common pay-scale of Rs. 700-40-1100-50-1200-EB-50-1600 was prescribed for the post of Lecturer.
4. There was revision of pay-scales of the teachers of the University and the Colleges affiliated to it in the faculties of Arts, Science, Commerce and Education, initially as per the Government Resolution dated 25.10.1977, as shown above w.e.f. 1st January, 1973 and thereafter, by the G.R. dated 27.2.1989 w. e.f. 1st January, 1986. We are concerned in these writ petitions with the revision of pay-scale made under the G.R. dated 27.2.1989.
5. The revision of pay-scales as per the G.R. dated 27.2.1989 is given in Appendix I to the said Government Resolution. So far the affiliated Colleges are concerned, the revision of pay-scales of the College teachers therein as given in the aforesaid Appendix I of the said G.R. dated 27.2.1989 is as follows :
-------------------------------------------------------------------------
Existing scale Revised
of pay scale of pay
College Teachers :-
1. Lecturer 700-40-1100-50-1600 2200-75-2800-100-4000
2. Lecturer " " " " " " 3000-100-3500-125-5000
(Senior Scale)
3. Lecturer - - - 3700-125-4950-150-5700
(Selection Grade)
4. Demonstrator/Tutor 500-20-700-25-900 1740-60-2700-EB-75-3000
Tutor
(Existing incumbents only)
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6. It is material to see that since as per the aforesaid G.R. dated 25.10.1977, the posts of Demonstrators and Tutors, who possessed the requisite qualification for appointment as Lecturers, were upgraded as Lecturers w.e.f. 1.7.1975, the cadre of Demonstrator/Tutor was a dying care as each post therein existed only during the period of service of its existing incumbents who was not qualified to be appointed as a lecturer and whose post therefore could not be upgraded as a post of a lecturer. It is for this reason that the revised pay-scale was given to the existing incumbents of the posts of Demonstrators/Tutors as per the aforesaid G.R. dated 27.2.1989.
7. As required by Clause 32 of the G.R. dated 27.2.1989, the Vice Chancellors of the Nagpur and Amravati Universities in exercise of their powers under Section 11(6)(b) of their relevant Statutes, issued directives to implement the scheme of revised pay-scales recommended by the U.G.C. for the teachers in the Universities and the affiliated Colleges. The directives issued by the Vice-Chancellor of the Nagpur University are dated 3.5.1989 and those issued by the Vice Chancellor of the Amravati University are dated 25.5.1989. So far as the Amravati University is concerned, it has thereafter passed also the Statue i.e. Statute No. 1 of 1989 for implementing the scheme of revision of pay scales as per the G.R. dated 27.2.1989.
8. It is necessary to notice in this regard that after the directives were issued by its Vice Chancellor on 3.5.1989 to implement the scheme of revision of pay-scales under the G.R. dated 27.2.1989, the Nagpur University had appoint a Co-ordination Committee to consider the question of implementation of the pay-scales of teachers and to make recommendations in that regard. The said Co-ordination Committee made its recommendations which were placed before the Executive Council of the Nagpur University. The Executive Council of the Nagpur University in its meeting held on 31st August/1st September, 1989 passed the resolution, accepting the recommendations of the Co-ordination Committee in connection with the directives issued by the Vice-Chancellor on 3.5.1989 for implementing the scheme of U.C.C. for revision of pay-scales, subject to modifications proposed by it in the said meeting. The recommendation of the Co-ordination Committee which is relevant for our purpose and which is accepted by the Executive Council is contained in para 5 of its recommendations according to which for the purpose of calculating the service of a lecturer as mentioned in para 12 (a) of the G.R. dated 27.2.89 for the placement in the Senior Scale of Rs. 3,000/- - 5,000/- and as mentioned in para 13 (a) of the said G.R. dated 27.2.1989 for placement in the Selection Grade of Rs. 3,700/- - 5700/-, it recommended that the past service of the lecturers as Demonstrator/Tutor/Instructor of Physical Education etc. should be counted.
9. After this recommendation was accepted by the Executive Council of the Nagpur University in its meeting held on 31st August/1st September, 1989 the Registrar of the said University addressed a letter dated 22.9.1989 to the Government bringing to its notice that the University had accepted the G.R. dated 27.2.1989 subject to modification which was made by it and sought approval of the Government for the same. However, by its subsequent letter dated 7.10.1989, the Nagpur University informed the Government that it should treat its letter dated 22.9.1989 as cancelled and further informed it that with the modifications made by the Executive Council as per the report of the Co-ordination Committee, it approved the directives issued by the Vice Chancellor for implementing the G.R. dated 27.2.1989 which was in turn issued for implementing the recommendations of the U.G.C. about the revision of pay-scales of the teachers in the Universities and the affiliated College. The said decision was also communicated by the University to its affiliated Colleges.
10. As regards the Amravati University, after the directives were issued by the Vice-Chancellor under Section 11 (6) (b) of the Amravati University Act on 25.5.1989 implement the G.R. dated 27.2.1989, certain points were raised by the Assessment Committee for starting its work of assessment as provided in para 19 of the aforesaid G.R. dated 27.2.1989. The Vice-Chancellor clarified the said points in writing on 30.8.1989. As per para 4 of the said clarification given by him on 30.9.1989, as regards the question whether a lecturer's service as Tutor or Demonstrator can be counted for counting the length of service under clauses 12 (a) and 13 (a) of the Government Resolution dated 27.2.1989, the clarification given by him was that after carefully examining the provisions of the said G.R. dated 27.2.1989 and its language, his answer was in the affirmative. However, the said para 4 further shows that the decision on this question was not firmly taken by him but was deferred by him. There is an asterik mark at the end of the said sentence and against the said asterik mark at the bottom of the said clarification what is written is "Deleted lateron" which would mean that he was of the view that under the provisions of Clauses 12(a) and 13(a) of the aforesaid G.R. dated 27.2.1989, the service of a lecturer as Demonstrator and Tutor can be counted.
11. It may be seen that as provided in para 19 of the G.R. dated 27.2.1989 the Assessment Committees were constituted by the respective Universities for considering the question of placement of Lecturers in Senior Scale and Selection Grade. The said Assessment Committees while considering the aforesaid question of placement in the Senior Scale and Selection Grade under clauses 12(a) and 13(a) of the aforesaid G.R. dated 27.2.1989 computed the services of the Lecturers as Demonstrators/Tutors in the light of the above view taken by the Nagpur University as well as Amravati University regarding the said question. It thus means that they had given weightage to the service of the petitioners from the dates of their appointment in the posts of Demonstrators/Tutors to the date of their posts of Demonstrators/Tutors were upgraded as Lecturers w.e.f. 1.1.1975 as per the G.R. dated 25.10.1977 i.e. upto 30.6.1975. However, the Director of Education (Higher Education), M.S. Pune, did not accept the above recommendations of the Assessment Committees.
12. It is material to see that after the receipt of the letter from the Nagpur University dated 22.9.1989, the State Government had informed the Nagpur University by its letter dated 25.10.1989 that past service as Demonstrator/Tutor should not be counted for placement in pay-scales of Rs. 3000-5000/- Rs. 3700-5700/-. The Director of Education (Higher Education), Pune had thereafter on 17.12.1989 issued a comprehensive Circular for proper and speedy implementation of the G.R. dated 27.2.1989. As per para 2 of the said Circular dated 17.12.1989 under the head 'Administrative Control', it is pointed out that while counting the service for the post of Senior Grade or the Selection Grade lecturer the service of the Lecturer as Demonstrator or Tutor cannot be taken into account. The Director of Education (Higher Education) Pune did not thus take into account the past service of the Lecturers as Demonstration/Tutors for their placement in the Senior Scale or the Selection Grade Lecturer as the case may be as provided in clauses 12 (a) and 13 (a) of the G.R. dated 27.2.1989. Feeling, therefore, aggrieved, the petitioners have impugned the letter of the State Government dated 25.10.1989 addressed to the Nagpur University and the Circular dated 17.12.1989 issued by the Director of Education (Higher Education) M.S. Pune, by way of the instant writ petition claiming a declaration that their service as Demonstrators/Tutor till 30.6.1975 should be computed while determining their placement in the Senior Scale or the Select Grade for Lecturers as provided in Clauses 12 (a) and 13 (a) of the aforesaid G.R. Dated 27.2.1989.
3rd August 1994
13. The only question that we have therefore to consider is whether the services of the petitioners as Demonstrators/Tutors upto 30.6.1975 can be taken into consideration while considering the question of their placement in the post of Lecturer (Senior Scale) having revised pay-scale of Rs. 3000-5000/- and the post of Lecturer (Selection Grade) having revised pay-scale of Rs. 3700-5700/- as provided in clauses 12 (a) and 13 (a) of the aforesaid G.R. dated 17.2.1989 issued by State Government and implemented by the Nagpur University and the Amravati University, as per the directives issued by the Vice Chancellors of the said Universities under Section 11 (6) (b) of their respective Acts. So far as the Amravati University is concerned, as already pointed out, there is Statute No. 1 of 1989, which is issued to implement the scheme of revision of pay-scales as per the G.R. dated 27.2.1989. What is urged on behalf of the petitioners is that it is exclusively within the jurisdiction of the Universities to determine the question whether the past service of the petitioners as Demonstrators/Tutors should be taken into account while computing their services as Lecturers because their conditions of service are regulated by the provisions in the University Act and, therefore, the State Government or the Director of Education (Higher Education) M.S. Pune, have no power to interfere with the decisions taken by the Nagpur and Amravati Universities in this regard and the recommendations made by their Assessment Committees for placement of the petitioners in the Senior Scale or the Select Grade of Lecturers under Clauses 12 (a) and 13(a) of the aforesaid G.R. dated 27.2.1989 by computing their past services in the post of Demonstrators/Tutors from their dates of appointment in the said posts to 30.3.1975.
14. In deciding the said question, it is pertinent to see that the scheme of pay-revision and promotion in regard to the teachers of the non-agricultural Universities and the Colleges affiliated to them in the faculties of Arts, Science, Commerce and Education is introduced on national level as per the recommendations of the University Grants Commission. The preamble of the G.R. dated 27.2.1989 shows that after appointment of 4th Pay Commission for Central Government Employees, the University Grants Commission had appointed a committee under the Chairmanship of Prof. Mehrotra to examine the present structure of emoluments and conditions of service of University and College of teachers and after considering the report of the said Committee, the University Grants Commission had submitted its recommendations to the Government of India in February, 1987. After examination of the report the Government of India evolve a scheme of pay revision for the University and College teachers and other measures for improvement of standards in higher education. By its letter dated 17th June, 1987 and subsequent letters dated 7th September, 1987 and 22nd July, 1988, the Government of India had recommended to the State Governments to implement its scheme about pay revision and other measures for improvement of standards in higher education. After careful consideration of the said scheme, the State Government had by its G.R. dated 27.2.1989 decided to implement the said scheme as per the terms and conditions of service detailed in the said G.R. dated 27.2.1989.
15. What is most material to be borne in mind while considering the above contention raised on behalf of the petitioners is that as per clause 35 of the aforesaid G.R. dated 27.2.1989, the additional expenditure on account of revision of scales of pay of teachers in the University, Government and non-Government Colleges as on 1.1.1986 has to be initially shared for the period from 1.1.1986 to 31.3.1990 between the Government of India and State Government in the ratio of 80 : 20 and thereafter i.e. from 1.4.1990 the entire liability on account of the said additional expenditure has to be borne by the State Government. The say of the Government in implementation of its scheme of revision of payscales under the aforesaid G.R. dated 27.2.1989 cannot, therefore, be ignored. Bearing this in mind, we proceed to examine the provisions in the G.R. dated 27.2.1989 to determine the question of the control exercised by the State Government or its Officer in implementing the scheme of pay revision framed thereunder.
16. Perusal of the G.R. dated 27.2.1989 would show that the package scheme of revision of payscales incorporated in the G.R. dated 27.2.1989 envisages and provides for changes in the other conditions of service of the teachers also for raising the standards in Higher Education. Therefore as per clause 32 thereof, the State Government has asked the Universities to initiate action to frame suitable statutes under the relevant provisions of the respective Universities Acts, 1974, and take immediately all appropriate steps which may be required to implement the package scheme of revision of pay-scales framed under the said G.R. dated 27.2.1989 for the maintenance of standards in Higher Education, for their teachers and College teachers. The Vice-Chancellors of all the non-agricultural Universities in the State were requested to ensure that no part of the said scheme remained unimplemented or not implemented effectively for want of guidance in the form of statues, ordinances, regulations, rules and criteria which would be necessary to implement the said scheme.
17. What is most pertinent to be seen in that as per Clause 33 of the said G.R. dated 27.2.1989, the Director of Education (Higher Education) is the Authority to implement the scheme of the revised scales of pay for University/College teachers recommended by the University Grants Commission. The Regional Administrative Officers, Higher Education, (Grants) of the concerned regions are given the authority for fixation of pay and for recommending the claims of arrears to the office of the Director of Education (Higher Education). The Director of Education (Higher Education) is also empowered to prescribe the procedure of keeping separate account of the expenditure on account of revision of pay-scales for the purpose of claiming central assistance. It is thus clear from the above para 33 that the final authority in fixation of pay-scales of the University and College teachers is the Director of Education (Higher Education).
18. This is also clear from clause 19 of the aforesaid G.R. dated 27.2.1989 which provides for constitution of the Assessment Committees for the purpose of placement of lecturers in Senior Scale and Selection Grade. It is provided in the said para 19 that the recommendations of the Assessment Committees in this regard should be forwarded by the Universities concerned to the Director of Education (Higher Education) M.S. Pune. Clause 19 itself thus clearly shows that the final authority in regard to fixation of pay-scale does not vest with the University but with the Director of Education (Higher Education) M.S. Pune because all the recommendations of the Committee have to be forwarded by the Universities to the Director of Education (Higher Education) M.S. Pune, and they cannot themselves take any final decision on the basis of the said recommendations of the Assessment Committees.
19. Clause 34 of the aforesaid G.R. dated 27.2.1989 further casts on obligation upon him to send a quarterly statement to the Accountant General Maharashtra before the close of every financial year and also to claim the grant from the Central Government. All these provisions thus clearly show that it is the duty of the Director of Education (Higher Education) M.S. Pune to see that there is compliance with the provisions of the G.R. dated 27.2.1989 in fixation of pay-scales and granting other benefits to the University and College teachers. At any rate, it is clear that the Universities have to initiate actions for implementing the provisions of the G.R. dated 27.2.1989 as they are if they want to take the benefit of pay-revision and other benefits conferred upon the University and College teachers thereunder and it cannot very on its own the requirements of the said G.R. or the term and conditions prescribed thereunder.
20. It is pertinent to see that in the directives of the Vice Chancellors the scheme as laid down in the G.R. dated 27.2.1989 is sought to be implemented as it is. However, the Nagpur University had appointed a Co-ordination Committee before accepting the directives of the Vice-Chancellor and it is in the light of the recommendations of the Co-ordination Committee, which are accepted by the Executive Council of Nagpur University, that it is sought to be urged that the service of the petitioners as Demonstrators/Tutors should be taken into account while giving them the benefit of the pay-scale of Senior scale or the senior grade Lecturers as per the G.R. dated 27.2.1989. It is, however, material to see in this regard that the University itself has in its return in the instant case acknowledged the authority of the Director of Education (Higher Education) as final authority in this matter and has admitted that the Director of Education (Higher Education) has not accepted the recommendations of the University to compute service of the petitioners as Demonstrators/Tutors in considering the question of their placement in senior scale or the selection grade of Lecturer.
21. The learned counsel for the petitioners has urged before us that the terms and conditions of service of the University/College teachers are regulated by the respective University Acts. He has brought to our notice that under Section 24(1)(xxx) and (xxx-a) of the Nagpur University Act, the Executive Council has the power to determine the conditions of service of the University/College teachers and to determine their employments. In our view, even assuming that the University has such a power, where the State Government is bearing the additional financial burden caused due to the revision of pay-scales, the scheme to be implemented is the scheme framed by it and it has to be implemented as it is without any changes, unless authorised by the State Government itself, by exercising the aforesaid powers under the University Act, when the University takes benefit of the said scheme for the University and the College teachers.
22. Even otherwise, it has to be seen that as regards the University teachers, Section 77-B of the Nagpur University Act (corresponding section of the University Act is section 88) requires the sanction of the State Government for any financial commitment to be taken by the University which means that all its proposals involving financial implications are subject to scrutiny and final sanction by the State Government. If the financial sanction or the State Government is required in respect of the University teachers, it is difficult to see why in respect of the teachers in the affiliated colleges, its sanction should not be necessary, when the financial burden arising out of the scheme of new revision of pay-scale is wholly undertaken by the State Government and further why the terms and conditions laid down by it in its G.R. dated 27.2.1989 should not be binding and should not be implemented by the Universities as they are. The submission on behalf of the petitioner that the Director of Education (Higher Education) has no authority to interfere with the decision of the Universities in this regard cannot thus be accepted.
23. The next question to be considered is whether Clauses 12(a) and 13(a) admit of computation of service as Demonstrators/Tutors while considering the claim of Lecturer for his placement in the senior scale of Rs. 3000-5000/- or in the selection grade of Rs. 3700-5700/- as the case may be. Clause 12(a) and 13(a) of the aforesaid G.R. dated 27.2.1989 are as follows :
"12. Career Advancement :- Every lecturer/Assistant Librarian/ Librarian/Director/Instructor of Physical Education/Assistant Director of Physical Education, in the existing scale of Rs. 700-1,600 will be placed in a senior scale of Rs. 3,000-5000 if he/she has :-
(a) completed 8 years of service after regular appointment with relaxation as provided in para 10 above;"
"13. Every Lecturer, Library and Physical Education Staff in the Senior Scale will be eligible for promotion, to the post of Lecturer (Selection Grade) Reader/Deputy Librarian/Deputy Director of Physical Education in the scale of pay of Rs. 3,700-5,700 if he/she has :-
(a) completed 8 years of service in the senior scale provided that the requirement of 8 years will be relaxed if the total service of the lecturer is not less than 16 years."
23-A) Bare reading of Clause 12(a) would show that what it envisages is 8 years service after regular appointment as a Lecturer. The only relaxation which is provided for is as in Clause 10 of the said G.R. dated 27.2.1989, which would itself show that no other relaxation is permissible in granting the benefit of Clause 12 of placement of a Lecturer in senior scale. As regards the completion of 8 years service after regular appointment, it is needless to state that the said service is as a Lecturer. Similarly in para 13(a) for getting the post of Lecturer (Selection Grade) in the pay-scale of Rs. 3700-5700/- the requirement is of completion of 8 years service in the senior scale which can be relaxed if the total service in the post of Lecturer is not less than 16 years. Here also the length of service envisaged is in the post of Lecturer (Senior Scale) or the Lecturer only as the case may be. These clauses do not thus admit of computation of service as Demonstrator/Tutors in getting the benefit thereunder.
24. The learned counsel for the petitioners has, however, sought to contend before us that in interpreting clauses 12, and 13 of the aforesaid G.R. dated 27.2.1989, the service as "teacher" should be computed. He has relied upon the definition of the expression "teacher" given in Section 2(13) of the Nagpur University Act, 1974 which inter alia includes Demonstrator and Tutor also. However, what needs to be seen is that in clauses 12 and 13 the word used is not "teacher" but "Lecturer" along with other categories of officers/employees in the University and its affiliated Collages. It is clear from the definition of the expression "teacher" referred to above that the said word used is in a generic sense whereas the word "Lecturer" is only a specie one of the categories of teacher. Admittedly there are various categories of teachers such as Professor, Reader, Lecturer, Demonstrator/Tutor etc. having different pay-scales, duties and responsibilities. The word "Lecturer" used in clauses 12 and 13 of the aforesaid G.R. dated 27.2.1989 cannot thus be equated with the word "teacher". The above submission made on behalf of the petitioner is thus devoid of any merit and has to be rejected.
25. It is then necessary to see that there is no rationale behind the recommendations of the Co-ordination Committee, which requires that the whole of the service of the Demonstrator/Tutors should be taken into consideration while giving them the benefit of the pay-scales of Lecturers of Lecturers as per the Government Resolution dated 27.2.1989. It is pertinent to see that the post of Demonstrators/Tutors was a post lower than the post of Lecturer, qualification wise duty and responsibility wise as well as pay-scale wise. It appears that the Government had taken a decision to abolish the cadre of Demonstrator/Tutor at the time the G.R. dated 25.10.1977 was issued and had decided to absorb the incumbents of the posts of Demonstrators/Tutors, who possessed the requisite qualification for appointment as Lecturers, by upgrading their posts as Lecturers w.e.f. 1st July, 1975. It had also resolved that no new appointment should be made in the post of Demonstrator/Tutor. However, it allowed the existing incumbents of the said posts of Demonstrators/Tutors thus maintaining the said cadre only for such incumbents till they continued in service in the said posts.
26. It is pertinent to see that uptillnow the said G.R. dated 25.10.1977 is not challenged by the Demonstrators/Tutors, on the ground that it should be made applicable to all the Demonstrators/Tutors irrespective of their qualifications from the dates of their appointment in the said posts. Even these Demonstrators/Tutors like the petitioners who possessed the requisite qualifications of the posts of Lecturers and who were upgraded as Lecturers have not challenged the said G.R. dated 25.10.1977 on the ground that they should be treated as Lecturers from the dates of their appointment in their posts of Demonstrator/Tutors and not from 1.7.1975 on the ground that the said date has not rationale. In fact no such claim could be made any any rate prior to the date on which they attained the qualifications requisite for the post of Lecturer. So, the petitioners are actually continued as Lecturers w.e.f. 1.7.1975 only.
27. It is, therefore, difficult to see how the services of the petitioners as Demonstrators/Tutors can be taken into consideration while giving them the benefit Clauses 12 and 13 of the G.R. dated 27.2.1989 which are available to a person working as Lecturer. It is then necessary to see that if the service of the petitioners as Demonstrators/Tutors is computed while considering the claim for benefit under Clauses 12 and 13 of the G.R. dated 27.2.1989 meant for Lecturers, it will be arbitrary and discriminatory to those who were appointed as Lectures and worked as Lecturers, because by their service as Demonstrators/Tutors, the petitioners would be able to go in higher scale of pay earlier as compared to the lecturers, who although appointed prior to 1.7.1975, may not be having that much service as Lecture for higher grade and pay-scale. The recommendations of the Co-ordination Committee and its acceptance by the Executive Council of the Nagpur University has thus no rationale.
28. In the result, all the writ petitions fail and are dismissed. No costs.