Gujarat High Court
M K Prajapati University Librarian vs State Of Gujarat on 11 May, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2338/1992 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2338 of 1992
With
SPECIAL CIVIL APPLICATION NO. 10512 of 1998
With
SPECIAL CIVIL APPLICATION NO. 10522 of 1998
With
SPECIAL CIVIL APPLICATION NO. 531 of 1991
With
SPECIAL CIVIL APPLICATION NO. 582 of 2000
With
SPECIAL CIVIL APPLICATION NO. 5940 of 1995
With
SPECIAL CIVIL APPLICATION NO. 808 of 2009
With
SPECIAL CIVIL APPLICATION NO. 99 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== KANTABEN K VYAS Versus NAVSARI AGRICULTURRAL UNIVERSITY,THRO.THE REGISTRAR, ========================================================== Appearance:
No Appearance, ADVOCATE for the Petitioner(s) No. 1 MR BHASKAR P. TANNA, SENIOR COUNSEL WITH MR. B.S. SUPEHIA, ADVOCATE FOR M/S. TANNA ASSOCIATES, ADVOCATE for the 1 C/SCA/2338/1992 CAV JUDGMENT Petitioner(s) in SCA Nos.2338/1992, 99/1993, 531/1991 and 5940/1992 MR SHALIN MEHTA, SENIOR COUNSEL WITH MR MAULIN G. PANDYA, ADVOCATE in SCA Nos.10522/1998, 808/1998, 582/2000, 10512/1998 MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 2 MS DHARA M SHAH, ADVOCATE for the Respondent(s) No. 1 MS MAITHILI D MEHTA, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/05/2018 COMMON CAV JUDGMENT
1. Heard Mr.Bhaskar P. Tanna, learned senior counsel with Mr.Dhiraj Sejvani, learned advocate for the petitioners in SCA Nos.2338/1992, 99/1993, 531/1991 and 5940/1995 and Mr.Shalin Mehta, learned senior counsel with Mr.Maulin G. Pandya, learned advocate for the petitioners in SCA Nos.10522/1998, 808/1998 and 582/2000 and Ms.Shah, learned advocate for the respondent in Special Civil Application No.2338 of 1992 and Mr.Gautam, learned AGP.
2. In this group of petitions, the petitioners have claimed parity, in the matter of salary and pay scale, with teaching staff and appropriate pay scale on the basis of pay scale applicable to 2 C/SCA/2338/1992 CAV JUDGMENT the employees in corresponding equivalent post in teaching staff.
2.1 The petitioners, in this group of petitions, were employed / are employed in cadre of Librarian (Librarian / Deputy Librarian / Assistant Librarian), Registrar (Registrar / Deputy Registrar / Assistant Registrar), Director of Physical Education (Deputy / Assistant Director of Physical Education), Controller of Examination (Deputy / Assistant Controller of Examination), Chief Accounts Officer (Deputy Accounts Officer).
SCA No.2338/1992 The petitioner in the captioned petition, who, at the relevant time, worked as Assistant Librarian has prayed, inter alia, that the intimation vide letter dated 31.8.1991 may be set aside and to hold declare that she would retire in August 1992 and to revise her pay scale as per Sen Pay Commission and the pay scale may be further 3 C/SCA/2338/1992 CAV JUDGMENT revised according to UGC Scale and to pay arrears.
SCA No.99/1993 The petitioner in the captioned petition, who served as Librarian with Gujarat Ayurved University, has prayed, inter alia, for declaration that he is entitled for pay scale of Rs.15002000 with effect from December 1979 and for pay of Rs.15002500 with effect from 1.4.1980 and for direction that he should be paid arrears with effect from the said dates. The petitioner has alternatively prayed for declaration that he is entitled for the pay scale of Rs.7001600 with effect from 1.4.1980.
SCA No.531/1991 The petitioner in the captioned petition who served as Librarian with Gujarat Ayurved College, has prayed, inter alia, for direction against the respondents to pay wages in pay scale of Rs.2200 4000 and that the order dated 29.1.1990 may be quashed and for declaration that she is entitled 4 C/SCA/2338/1992 CAV JUDGMENT to pay scale of Rs.22004000.
SCA No.5940/1992 The four petitioners in the captioned petition, who at the relevant time worked as Librarian in Gujarat University (respondent No.3), South Gujarat University (respondent No.4), Junagadh Agriculture University (respondent No.5) and Sardar Patel University (respondent No.6), have prayed, inter alia, for declaration that they are entitled for pay scale prescribed by UGC for teaching staff and that they should be treated on par with other academic staff of the university for all benefits from 1.1.1973.
SCA No.10522/1998 The petitioners have prayed, inter alia, for direction to implement Notification dated 27.7.1998 and Government Resolution dated 7.9.1998 whereby pay scales in respect of teaching staff as well as other personnel (administrative officer) of different 5 C/SCA/2338/1992 CAV JUDGMENT universities came to be revised.
SCA No.10512/1998 The eleven petitioners in the captioned petition served, at the relevant time, on the post of Registrar or Incharge Registrar or Deputy Registrar or Controller of Examinations or Chief Accounts Officer with Sardar Patel University, Bhavnagar University, North Gujarat University, South Gujarat University. The said petitioners have prayed, inter alia, for direction against the respondents to implement notification dated 27.7.1998 and government resolution dated 7.9.1998 and communication dated 2.11.1998. SCA No.582/2000 The eight petitioners, who served as Registrar or Incharge Registrar or Deputy Registrar or Controller of Examinations or Chief Accounts Officer, have taken out present petition with the claim that the respondents be directed to revise and upgrade the pay scale attached to the post of 6 C/SCA/2338/1992 CAV JUDGMENT Registrar or Incharge Registrar or Deputy Registrar or Controller of Examinations or Chief Accounts Officer and to place it on par with effect from 1.1.1986 with pay scale recommended by UGC and accepted by the State of Gujarat. SCA No.808/1998 Petitioner No.1 in the captioned petition is Gujarat State University Officers Association, whereas petitioners No.2 to 6 who served as non teaching staff with Veer Narmad South Gujarat University, Saurashtra University, Bhavnagar University, Gujarat University, have prayed, inter alia, for direction against the respondents to ensure that nonteaching staff of the universities are given pay scale prescribed by UGC in same manner as made available to the teaching staff.
3. The main plank of the contention by learned advocates for the parties, to justify the demand, is that their posts and their functions are 7 C/SCA/2338/1992 CAV JUDGMENT equivalent to and on par with teaching staff and the said aspect is recognized by UGC as well as Government of India and appropriate notification is also issued by Government of India after taking into account the recommendation by UGC, however, the respondent government and universities have declined to grant pay scales on par with pay scale of equivalent post in teaching staff to the petitioners working in the category / cadre of Librarian, Registrar, Assistant Registrar, Personnel in Physical Education, Chief Controller of Examinations and Chief Accounts Officer. The claim is mainly based on the notification dated 27.7.1998 by GoI and G.R. dated 7.9.1998 by respondent State Government. Some of the petitioners have also claimed that their work and functions are similar to and on par with and equivalent to the work and functions of academic staff and that, therefore, they should be considered on par with academic staff of university and they should not be treated as nonteaching / nonacademic staff of 8 C/SCA/2338/1992 CAV JUDGMENT the colleges or university. The entire demand by the claimant, i.e. the request for direction for payment of salary in appropriate pay scale recommended by UGC for academic staff is based on the resolution / notification dated 22.7.1988 issued by Government of India and the notification dated 2.11.1988 issued by Government of India as well as government resolution dated 7.9.1998 issued by Government of Gujarat. The learned advocates also claim that denial of said benefit amounts to discrimination and that the denial of benefit and the discrimination are arbitrary and irrational.
4. Per contra learned AGP denied the allegation about discrimination, arbitrariness or irrational approach / decision. It is claimed that the State has determined the pay scales for different posts after considering relevant factors and paying capacity / financial position of State. It is also claimed that the eligibility criteria prescribed by the State / Universities in the 9 C/SCA/2338/1992 CAV JUDGMENT State in respect of the posts in question are different from the criteria prescribed by UGC / 5th Pay Commission and accepted by Government of India and that, therefore, parity in the matter of pay scale claimed by the petitioners is unjustified. In furtherance of the said submission, it is also claimed that the State Government has fixed the pay scales after taking into account the report of the Committee appointed by the State to examine the anomalies and to recommend corrective measures and that final decision on this account is taken after considering the Committee's report. The respondent State also claimed that the Government issued the resolution dated 7.9.1998 after taking into account the notification dated 27.7.1998 and after examining relevant factors including differences between the eligibility criteria prescribed, on one hand, by the State and on the other hand by UGC / 5th Pay Commission. According to learned AGP, there is no justification in petitioners' claim about similarities between 10 C/SCA/2338/1992 CAV JUDGMENT nonteaching staff and teaching staff of the Universities in the State and/or between relevant eligibility criteria recommended by UGC and determined by Government of India.
5. Learned advocate for the agriculture university emphasised the fact that the agriculture university is not within the purview of UGC and the guidelines or directives issued by UGC, more particularly the pay scales recommended by UGC are not applicable and are not binding to the agriculture university. It is also claimed that there is no basis for comparison between nonteaching staff of agriculture university with nonteaching staff of universities within purview of UGC and/or between nonteaching staff of agriculture university with teaching staff of agriculture university. Similar is the stand by Ayurved University.
6. I have considered rival submissions and material available on record.
11 C/SCA/2338/1992 CAV JUDGMENT
7. Before proceeding further, it is necessary to mention and clarify that the Court would address and decide limited issue viz. whether the posts / categories of Librarian, Assistant Registrar, Physical Education, Chief Controller of Examinations and Chief Accounts Officer are covered under the notification and government resolution or not and whether the said posts can be bracketed with teaching staff or not. Whereas consequential decisions including the decision with regard to appropriate pay scale (i.e. the scale attached to particular post) and fixation at appropriate stage in appropriate pay scale will fall within realm of the State Government and the decision with regard to appropriate pay scale and subsequent fixation of salary in appropriate pay scale shall have to be undertaken by the State Government.
8. In view of the fact that the petitioners in captioned petitions were / are employed in different cadre and that certain cadre are common 12 C/SCA/2338/1992 CAV JUDGMENT in more than one petitions e.g. the employees in cadre of Librarian are petitioners in SCA Nos.2338/92, 99/93, 531/91, 5940/95, 10522/98. Similarly employees in cadre of Registrar are petitioners in SCA Nos.10512/98 and 582/2000, the claims, for sake of convenience, are examined cadre / posts wise instead of petitionwise.
9. So far as the petitioners in cadre of Librarian (Assistant / Deputy Librarian) are concerned, the case and claims of the petitioners in said category - cadre fall under two sub division viz. (a) those employed in universities under the umbrella of UGC; and (b) those in the universities outside the purview of UGC. In light of the reply by the Ayurved / Agriculture University, the case of the petitioners in cadre of Librarian and Physical Education employed in Ayurved University and Agriculture University have to be segregated.
10. The said petitioners have heavily relied on above mentioned notification dated 27.7.1998 and 13 C/SCA/2338/1992 CAV JUDGMENT government resolution dated 7.9.1998 as well as the decision in SCA No.872/1985.
11. A glance at the Statement annexed to the said notification brings out that the said statement does not cover the posts in the cadre of Controller of Examinations and/or Chief Accounts Officer and it specifically excludes Agriculture Universities as well as Medical and Veterinary Science Colleges / Universities.
12. In pursuance of and after taking into account the said Notification, the State Government issued Resolution dated 7.9.1998. It emerges from the resolution dated 7.9.1998 that the State Government resolved to adopt and implement the decision by the Government of India, declared vide notification dated 27.7.1998. This aspect comes out from paragraphs No.1 and 2 of resolution dated 7.9.1998 which read thus:
"RESOLUTION:
Government had sanctioned pay scales to Universities and college Teachers under Government Resolution, Education Department, dated 14.9.1988 cited above, as per the recommendations of Mehrotra commission, Government of India has revised the payscales of University and College Teachers vide th its letter dated 27 July, 1998 cited above . The question of 14 C/SCA/2338/1992 CAV JUDGMENT revision of payscales of University and College Teachers as well as Librarians and Physical education Personnel On the lines of Government of India was under consideration of Government for sometime past.
2. Government has since considered this issue carefully and it has to be decided that the pay scales of teachers in Universities and non Government and Government affiliated colleges and those of librarians and physical education st personel should be revised with effect from 1 January, 1996 .
The terms and conditions of revision of pay scales of teachers librarian and physical education personnel are mentioned in appendix appended to this Resolution, the details of revised pay scales w.e. from 1.10.98 have been given in annexureI and the revised pay scale w.e. from 1.1.96 to 30.9.98 is given in annexure II appended to this Resolution.
5. This issues with the concurrence of Finance Deptt. vide its note dated 5th September, 1998 on this department file of even number.
By order and in the name of the Government of Gujarat."
13. The categories covered under the Appendix to the G.R. dated 7.9.1998 include the employees employed in the Universities in category of librarian, Director of Physical education, Deputy Librarian, Deputy Director of Physical Education, Assistant Librarian, Assistant Director of Physical Education etc. The said government resolution, however, excludes the cadre of Registrar, though said cadre is included in the notification dated 27.7.1998.
14. After the Government passed the resolution dated 7.9.1998, the Government passed another / consequential resolution dated 11.11.2009 with reference to the employees in the universities in 15 C/SCA/2338/1992 CAV JUDGMENT the State and the grant / nongranted colleges.
15. From the said resolution dated 11.11.2009 it comes out that the Government declared that subject to the terms and conditions mentioned in the said resolution dated 11.11.2009, the salaries of the employees in the cadre of Librarian or personnel in physical education employed in the university and the university affiliated granted / nongranted colleges shall be revised according to the resolutions dated 7.9.1998 and 11.11.2009. The said resolution dated 11.11.2009 is issued in furtherance of above mentioned government resolution dated 7.9.1998. The said government resolution dated 11.11.2009 pertains to the category / cadre of the Librarian and the Personnel in Physical Education and declares the decision of the State Government to grant revised salary and pay scale to the employees in said category / cadre, on scale to scale basis. By the said resolutions, the Government also declared that the pay scale 16 C/SCA/2338/1992 CAV JUDGMENT of the said employees shall be revised on scale to scale basis.
16. The grievance of the petitioner is that despite the said resolution including resolution dated 7.9.1998, the respondent State has not acted in furtherance of and in compliance of any decision reflected from the resolutions dated 7.9.1998 and 11.11.2009. With the said grievance, the petitioners have prayed that the Government should implement its own resolution dated 7.9.1998.
17. Besides this, the petitioners have also placed on record office order dated 29.8.2011 issued by the Gujarat University declaring the decision that the Personnel in Physical Education are considered teaching staff.
18. A similar decision taken by Maharaja Sayajirao University, Baroda vide order dated 24.1.2011 is also placed on record. The said communication dated 24.1.2011 by the Registrar of 17 C/SCA/2338/1992 CAV JUDGMENT the university reflects the decision that the Personnel in Physical Education, i.e. Assistant Director are considered teaching staff (in the teaching category) and they would be entitled for the salary and pay scale as approved by UGC.
19. The petitioners in the cadre of Librarian and Personnel in Physical Education have also placed reliance on a communication dated 22.7.1988 by GoI, wherein it is mentioned, inter alia, that 'the revised pay scales of Librarian and Physical Education Personnel are the same as are approved for teachers....'. It is, therefore, claimed that the Librarian and Personnel in Physical Education have to be treated on par with teaching staff. Of course, it is also mentioned in the said communication that the revised pay scales will be admissible to only those Librarians and Personnel in Physical Education who have been sanctioned the pay scale of Lecturer. The emphasise is, however, on the fact that the said communication acknowledges that the Librarians 18 C/SCA/2338/1992 CAV JUDGMENT and Personnel in Physical Education are to be treated on par with Teachers in matter of pay scale.
20. As against said material the respondent State, on the other hand, has failed to place any material to support and justify its decision and/or to distinguish present petitioners' claim visavis said resolutions dated 7.9.1998 and 11.11.2009 and the State has also failed to offer any explanation for not acting in consonance with said decision in respect of employees in the cadre of Librarian and Personnel in Physical Education.
21. At this stage, it is necessary to mention that despite above mentioned resolutions, the Under Secretary (Higher Education), Education Department filed a common affidavit in Special Civil Application Nos.808/1998, 582/2000 and 10512/1998. In the said affidavit dated 27.6.2016 the deponent - Under Secretary has stated that recommendations by UGC are not mandatory and the 19 C/SCA/2338/1992 CAV JUDGMENT Government has to take its own decision as to whether the said recommendations should be implemented or not. The said deponent has also stated that the State Government has taken decision not to adopt recommendations by UGC for nonteaching staff. However, the said affidavit does not offer any reason or justification with regard to said decision and on the other hand it runs counter to the resolutions dated 7.9.1998 and 11.11.2009.
22. Besides this, on reading the consolidated affidavit in SCA No.582/2000, it comes out that the respondent State has not averred and has not addressed certain issue and vital aspects, viz.
(a) the reason for not implementing its own resolution dated 7.9.1998; and (b) the reason or the basis and justification for not considering employees in the cadre of Librarian, Physical Education, Registrar as teaching staff or equivalent to teaching staff in the matter of pay scale and fixation of salary in appropriate pay 20 C/SCA/2338/1992 CAV JUDGMENT scale; and (c) those features or qualifications or the duties and functions of the employees in the cadre of Librarian and/or Physical Education and/or Registrar employed in the Universities of the State which, according to the respondent State, are different from the features, factors, qualifications, duties, etc. of the employees in those cadre / category covered within UGC's recommendation and GoI's notification. The State has not mentioned even a single detail or distinguishing feature to demonstrate the difference, if any.
23. The respondent State has not mentioned any details or data and not placed any material on record to demonstrate that the notification dated 27.7.1998 cannot be applied and it has no applicability in present case and/or that other material on which petitioners have relied are not relevant and not applicable. Besides this, the respondent has not shown any reason or justification for differentiating Librarians from 21 C/SCA/2338/1992 CAV JUDGMENT teaching staff and not accepting UGC's recommendation and GoI's decision. On the other hand, the petitioners employed in said cadre have made out case for parity.
24. When the resolution dated 7.9.1998 specifically and expressly includes the category / cadre of Librarian and Personnel in Physical Education in absence of strong reason to justify its decision, the State cannot refuse to grant the benefit to the employees in the category / cadre covered under the resolution dated 7.9.1998 read with notification dated 22.7.1998.
25. For a moment, even if the said notification and the government resolution are not taken not account, then also the support derived by the petitioners from decision in SCA No.872/1985 cannot be lost sight of or cannot be overlooked.
26. On this count it is necessary to mention that the petitioners in the cadre of Librarian and 22 C/SCA/2338/1992 CAV JUDGMENT Physical Education have also relied on the decision in SCA No.872/1985. They have also claimed that the issue as to whether the employees in the category / cadre of Librarian and Physical Education should be considered on par with teaching staff or not, has been considered and decided by the Court vide judgment dated 18.4.1986 in said SCA No.872/1985 and that the The observation in SCA No.872/1985 support the claim as well as submissions by the Librarian / Assistant Librarian in above mentioned SCAs viz. SCA Nos.15022/98, 2338/92. Therefore, it is appropriate to turn to the said decision.
27. In the said SCA No.872/1985, the Court (Coram: Hon'ble Mr.Justice R.C. Mankad, as His Lordship then was) considered the claim and contention of the petitioners in said petition, that they should be treated on par with university and college teachers and that the Librarian who came to be appointed before the date of relevant resolution should also be given 23 C/SCA/2338/1992 CAV JUDGMENT the same treatment and the prescribed qualification should not be insisted upon.
28. In the said case, the Court segregated the Librarians in five categories and observed, inter alia, that:
"Petitioners represent five categories of librarians who do not possess qualification prescribed in Annexure I to the Resolution Annexure H. First category represented by petitioner No.1 consists of librarians who are graduates or post graduates with degree in Library Science ('Lib. Sc.' for short) with class other than first class. Second category is represented by petitioner No.2 who is graduate in Science with a pass class and degree in Lib. Sc. with qualification. Third category represented by petitioner No.3 consists of librarians who hold post graduate degrees in Arts but who do not have degree or diploma in Lib. Sc. persons Persons belonging to this category possess certificate in Lib. Sc. issued by the University on completion of prescribed course in Lib. Sc. Fourth category represented by petitioner No.4 consists of librarians who are graduates in Science and who possess Certificate in Lib. Sc. issued by the University on completion of course in Lib. Sc. The last and fifth category is represented by petitioner No.5 and it consists of librarians who are not graduates but who possess secondary School Certificates and Lib. Sc. certificate issued by the University."
29. The qualifications which were taken into account, for examining the dispute, were those which were mentioned in the communication dated 6.9.1968. The Court then observed that:
"The grievance of the petitioners who represent five categories of librarians is that though they are to be treated on par with teachers or lecturers in college affiliated to the University they are not given to same treatment which is given to the teachers or lecturers in colleges. It is pointed out that the teachers who were in service on November 23, 1976 are not required to possess prescribed qualifications as per resolution Annexure 'J' dated June 9, 1981. In other words, in so far as those teachers who were in service on November 23, 1976 are concerned, the Government is not insisting upon their possessing or acquiring the prescribed qualifications. The teachers who were appointed after November 23, 1976 were initially given five year's time from June 12, 1979 to acquire the prescribed qualifications. This time has been extended to June 1986. However, so far as the librarians are concerned, they are not given the same treatment. The librarians belonging to all the five categories adverted to above, possess 24 C/SCA/2338/1992 CAV JUDGMENT qualifications prescribed by the University. The teachers in colleges who were in service on November 23, 1976, are not required to possess or acquire the qualifications prescribed for pay scale of Rs.7001600. If the same treatment is given to the librarians as is given to the teachers, the librarians who possess the qualifications prescribed by the University and who were in service on December 19, 1983."
30. The Court also observed that:
"On the other hand, the University has not disputed that the status of librarians is equal to that of lecturers in colleges, and in fact is has made certain recommendations to the State Government as contained in the letter, copy of which is annexed to the affidavit in reply of the Registrar of the University. I have already set out above the history of the status of librarians. They were not treated as equals of the teachers in colleges until their importance first came to be recognized by the U.G.C. headed by Dr.S. Radhakrishnan. The observations made by the Commission are already reproduced above. The commission recommended that the library should have adequate and well qualified staff headed by a man of the calibre of a university professor, who has specialized in some Renganathan Library Committee of the U.G.C. recommended that the status and salary scale of library staff should be the same as that of teaching and research staff. The Government of India accepted the recommendation of the U.G.C. and decided to put the librarians in universities and colleges and Director / Instructors of physical Education on par with teachers in the universities and colleges and to give them the same revised pay scale applicable to the teachers. It is in the light of this decision that the librarians represented by the petitioners were placed in the payscale of Rs.30025600 as stated above. A departure in this policy was made for a short period as a result of the recommendations made by Sen Committee, but again the original position was restored and the librarians and Directors / Instructors of physical Education were put on par with teachers in the universities and colleges. Thus, there is no doubt that the librarians have been bracketed with the teachers in colleges. In other words, they have been placed in the same class as teachers. This being the position, they are entitled to the same treatment which has been given to the teachers in colleges. I am told and that position is not disputed that so far as physical training Instructors in colleges are concerned, they are given same treatment, which is given to the teachers in colleges. In other words, physical Training Instructors are given revised pay scale of Rs.7001600 without insisting upon the prescribed qualification as in the case of the college teachers. It is only the librarians who are given different treatment. As pointed out above, both librarians and physical Training Instructors were to be treated on par with teachers in colleges. In practice what has happened is that only physical Training Instructors are given some treatment, while in so far as librarians are concerned as discussed above, they are not placed in revised pay scale unless they possess prescribed qualifications. There seems to be no justification for giving them different treatment. As held by the Supreme Court equals cannot be treated as unequals. In other words, the librarians who are treated as equals of teachers and physical Training Instructors are entitled to the same treatment.
So far as the teachers in colleges are concerned, those who were in service as on November 23, 1976, the date on which the resolution revising pay scale of Rs.7001600 and prescribing qualifications for this pay scale was issued, were not required to acquire qualifications prescribed by the said resolution. This decision was taken by resolution Annexure 'I' dated April 7, 1983.25 C/SCA/2338/1992 CAV JUDGMENT
It is also pertinent to note that before this resolution was issued by resolution Annexure 'H' dated June 12, 1979 the tutors and demonstrators possessing qualifications prescribed by the respective universities were placed in the pay scale of Rs.700 1600 although they did not possess the qualifications prescribed by the resolution dated Nov. 23, 1976. They were however required to acquire prescribed qualifications within a period of five years. However, inter on as pointed out above by the resolution dated April 7, 1983. In case of those teachers who were in service on November 23, 1976, the requirement of acquiring prescribed qualifications was not insisted upon. However, so far as those lecturers who were appointed after November 23, 1976 were concerned, they were required to acquire, qualification within a period of five years which has been extended upto June 1986. Five categories of librarians represented by the petitioners, it is not disputed possess qualifications prescribed by the University. There are, as in the case of tutors and demonstrators, these librarians who were in service on the date of the resolution Annexure 'F' dated December 19, 1983, acquisition of qualifications prescribed in the said resolution should not have been insisted upon. In case of teachers, the date on which the resolution revising the pay scale and prescribing qualifications was issued is taken as the relevant date for not insisting upon prescribed qualification for those who were in service on that date. On the same basis, those librarians who were in service on December 19, 1983, should be placed in the payscale of Rs.700 1600 without insisting upon their acquiring qualifications prescribed in the said resolution. At the cost of repetition it may be stated that five categories of librarians represented by the petitioners do possess qualifications prescribed by the University and it is therefore that they were placed in the pay scale of Rs.30025600 when they were first put on par with the college teachers. In so far as these librarians who were appointed after December 19, 1983, are concerned, they should be given five years time to acquire prescribed qualifications, period of five years would expire on December 18, 1988. If necessary as in the case of teachers this period may be extended by the appropriate authority. That is emphasised is that the librarians should be given the same treatment which is given to the teachers since both belong to the same class. In my opinion, therefore, petitioners must succeed."
31. It is also pertinent that in the cited decision, the Court has also recorded that the University has not disputed that the status of librarians is equal to that of lecturers in colleges. The Court also took into account the fact that actually, the university had made certain recommendations to the State Government to support the claim that the status of 26 C/SCA/2338/1992 CAV JUDGMENT librarians is equal to that of lecturers.
32. In the said decision, the Court also took into account that UGC recommended that the status and salary scale of library staff should be the same as that of teaching and research staff and that the Government of India accepted the recommendation of the UGC and decided to put the librarians in universities and colleges on par with the teachers in the universities and colleges and to give them the same revised pay scale applicable to the teachers.
33. Having taken note of the said facts and other relevant aspects, the Court concluded and observed that:
"... ... ... ... ... thus, there is no doubt that the librarians have been bracketed with the teachers in colleges. In other words, they have been placed in the same class as teachers. This being the position, they are entitled to the same treatment which has been given to the teachers in colleges."
34. In the said decision, the Court also observed that:
"Thus, there is no doubt that the librarians have been bracketed with the teachers in colleges. In other words, they have been placed in the same class as teachers. This being the position, they are entitled to the same treatment which has been given to the teachers in colleges."27 C/SCA/2338/1992 CAV JUDGMENT
35. It is pertinent to note at this stage that the respondent State has not only failed to place any material on record to either distinguish present claim from cited decision or to offer any explanation for not acting in consonance with said decision but the respondent State has not even made any attempt to distinguish this case and has not even dealt with the reasons and decision recorded by the Court and failed to make out a case that the decision is not applicable in present case and said decision may not be applied in present case.
36. In the cited decision, the Court also considered the claim and status of personnel in Physical Education and took into account the material which demonstrated that physical training instructors were also given similar treatment and they were bracketed with teachers (i.e. academic staff), however, it was only category of librarian which was not granted such benefit.
28 C/SCA/2338/1992 CAV JUDGMENT
37. The Court, in said decision, has observed that Physical Training Instructors were bracketed with Teachers and the Librarians stand on par with and they should also be bracketed with teaching staff and that the action of the respondents (viz. not granting pay scale of teaching staff to the librarians) is not sustainable. The recommendation by UGC are also on same lines / to the same effect and Government of India has accepted said recommendation by UGC. In this view of the matter, the petitioners in said two categories cannot be discriminated and they cannot be denied the benefit and effect of said conclusion and decision by the Court, which has undisputedly attained finality.
38. The State Government has failed to offer even one good reason for not giving effect to said decision in its true spirit and/or for not accepting notification dated 27.7.1998 in its totality though said notification absorbs, rests on and reflects the principle, spirit and 29 C/SCA/2338/1992 CAV JUDGMENT decision of said decision in SCA No.872/1985 so far as said two categories are concerned.
39. It is true that this Court has held that the Librarians and Personnel in Physical Education deserve to be bracketed with teaching staff and it is also true that similar recommendation by UGC is already accepted by the Government of India. However, so far as the submission that the respondent should not brush aside or ignore the recommendation by UGC is concerned, it is also equally true that the concerned employees who claim parity of wages with academic staff should establish that they possess the qualification prescribed by UGC for the post with which they claim parity. The said aspect, which is intrinsically connected with and attached to their claim, cannot be ignored when the claim essentially based on UGC's recommendation is under consideration.
40. At this stage, it is necessary note that in the said decision in SCA No.872/1985, the Court 30 C/SCA/2338/1992 CAV JUDGMENT directed that the petitioners (in SCA No.872/1985), who did not possess prescribed qualification, must acquire the qualification within time permitted / fixed by the Court.
41. In the cited decision the Court noticed that certain categories of librarians possessed qualification at par with qualification for teaching staff in colleges and for other categories of librarians (who did not possess similar qualification) the Court observed that such other librarians should be given time to acquire qualification. On this count, the Court observed that:
"... ... ... ... ... In so far as these librarians who were appointed after December 19, 1983, are concerned, they should be given five years time to acquire prescribed qualifications, period of five years would expire on December 18, 1988. If necessary as in the case of teachers this period may be extended by the appropriate authority. That is emphasised is that the librarians should be given the same treatment which is given to the teachers since both belong to the same class. In my opinion, therefore, petitioners must succeed."
42. Differently put, even in the said decision
(a) the Court emphasised that the employees in the said two categories would be eligible for the revised pay scale, provided he possesses revised qualification and the Court observed that the 31 C/SCA/2338/1992 CAV JUDGMENT petitioners should possess or should acquire prescribed qualification of academic staff; and
(b) the Court granted time to acquire the qualification, to the employees who, at that time, did not possess requisite qualification. Meaning thereby said requirement or condition cannot be diluted or ignored or given a gobye and the petitioners cannot escape from said condition.
43. In this group of petitions, the petitioners have not mentioned the details of their qualification i.e. the qualification they possess / they possessed at the relevant time.
44. Besides this, in the same decision (in SCA No.872/85) the observations with reference to Personnel in Physical Education (Director / Instructors in Physical Education / Training) are also relevant. In the said decision, the Court observed that:
"The Government of India accepted the recommendation of the U.G.C. and decided to put the librarians in universities and colleges and Director / Instructors of physical Education on par with teachers in the universities and colleges and to give them the same revised 32 C/SCA/2338/1992 CAV JUDGMENT payscale applicable to the teachers. It is in the light of this decision that the librarians represented by the petitioners were placed in the payscale of Rs.30025600 as stated above. A departure in this policy was made for a short period as a result of the recommendations made by Sen Committee, but again the original position was restored and the librarians and Directors / Instructors of physical Education were put on par with teachers in the universities and colleges. Thus, there is no doubt that the librarians have been bracketed with the teachers in colleges. In other words, they have been placed in the same class as teachers. This being the position, they are entitled to the same treatment which has been given to the teachers in colleges. I am told and that position is not disputed that so far as physical training Instructors in colleges are concerned, they are given same treatment, which is given to the teachers in colleges. In other words, physical Training Instructors are given revised pay scale of Rs.7001600 without insisting upon the prescribed qualification as in the case of the college teachers."
45. Foregoing discussion has brought out that the respondent State has failed to show justification for not accepting claim of the Librarians and Personnel in Physical Education and for not implementing the decision in SCA No.872/1985 as well as its own resolution and to not pay salary and other benefits to the employees in the category / cadre covered by the resolution dated 7.9.1998 read with notification dated 27.7.1998 by the Government of India. Any ground or justification for not granting parity claimed by the employees in said two cadre, though so concluded by the Court in the decision in SCA No.872/1985, is not made out by the respondent State.
33 C/SCA/2338/1992 CAV JUDGMENT
46. For the reasons mentioned above and in light of the discussion and reasons recorded in the decision in SCA No.872/1985, there is no valid and legally sustainable reason or justification to deny parity in matter of salary and pay scales to the employees in said two cadre, i.e. cadre of Librarian and cadre of Personnel in Physical Education. The claim by the petitioners - employees in the said two cadre deserves to be accepted - granted.
47. Of course, the decision as to which corresponding post / cadre in teaching staff will be equivalent to the post held (in nonteaching staff) by each petitioner and with which post in teaching staff they can be equated and their pay scales can be fixed - adjusted will have to be and can be taken by the respondent State. Further, such decision will depend on the qualification / experience of concerned petitioner. The said process of verification, determination and appropriate fixation / 34 C/SCA/2338/1992 CAV JUDGMENT adjustment will have to be taken by the respondent State by taking into account the qualification which the petitioner possessed and the post he held, at relevant time.
48. As mentioned above, the case of Librarian employed in Agriculture University University and Ayurved University have to be considered separately because the said universities opposed the claim of their employees in the said cadre on the ground that the said universities are not covered within the purview of UGC. On this count, it is relevant to note that except the said objection, any other ground for differentiation between Librarians employed in Agriculture University on one hand and the Librarians employed in other universities, is not raised.
49. Original claimant - petitioner in Special Civil Application No.2388/92 was employed in cadre of Assistant Librarian in Agriculture University.
35 C/SCA/2338/1992 CAV JUDGMENT
50. So far as the petition filed by the employee in Agriculture University (i.e. SCA No.2338/92) is concerned, it is necessary to keep in focus that the said University claims that it is not covered within purview of UGC.
51. In SCA No.2338/1992, the Deputy Secretary has filed affidavit on behalf of respondent No.2 State, wherein it is averred and stated that:
"8. It is submitted that on 3rd March 1999, the Central Government issued instructions regarding revision of pay scales of teachers of Agriculture University and colleges following revision of pay scale of Central Government employees on the recommendation of Fifth Pay Commission. The Librarian, Deputy Librarian and Assistant Librarian were also covered along with other cadres in the Annexure to the said letter.
11. It is submitted that the Finance Department rejected the proposal on 7th February 2000 stating the Librarians are not treated as teachers, hence, they cannot be given the benefit or career advancement.
12. It is submitted that the Government in Agriculture and Co operation Department, has taken up the matter again with the University requesting it to furnish detailed justification for positive solution of this problem and positive clearance from Finance Department.
13. It is submitted that the University sent the detailed justification vide its letter dated 15th November 2000. The Finance Department was again moved for giving sanction to the proposal of the Agriculture and Cooperation Department on the basis of the justification given by the University on 11th December 2000.
16. It is submitted that before taking a final view in respect of the proposal of the Agriculture and Cooperation Department, the Finance Department has again raised some more issues on 25th January 2001. The Agriculture and Cooperation Department vide its letter dated 6th February 2001 has requested the University to sent the compliance report in respect of queries raised by the Finance Department."
52. On reading said reply by the State, it emerges that any reason or ground for not 36 C/SCA/2338/1992 CAV JUDGMENT considering the employee/s in cadre of Librarian holding similar qualification, experience, job specifications, etc. on par with teaching staff is not made out by the respondent / deponent. Unless any material or any feature intrinsically attached to and inherent in the job which would illustrate substantive differences between the Librarians employed in Agriculture University and those employed in said cadre in other universities, is shown from record and unless it is established that there are material and substantial differences in duties, responsibilities, duty hours, quantity and quality of work, job specifications and of course qualification and other eligibility criteria so far as Librarians employed in Agriculture University as against those in other Universities, parity amongst Librarians (i.e. those employed in Agriculture University and those employed in other Universities which are within purview of UGC) cannot be denied and such discrimination cannot be perpetuated. In present 37 C/SCA/2338/1992 CAV JUDGMENT cases, the respondents have failed to make out sustainable justification for differentiation and/or for such discrimination.
53. The affidavit filed by State merely state that Finance Department rejected the proposal on the ground that the librarians are not considered teachers. However, any reason to justify such decision (not considering said petitioners 'teaching staff' is not made out and any good ground for not accepting said proposal or for stating and conveying that Librarians are not considered teachers does not emerge from said affidavit. It is claimed in said affidavit that the submission was again forwarded to the Finance Department for positive solution and the Finance Department raised certain queries which were replied and thereafter the matter remained pending for consideration and final decision. Thus, the said affidavit by the State does not offer explanation about its decision or does not offer support to its decision. The said affidavit 38 C/SCA/2338/1992 CAV JUDGMENT also does not make out any case for discriminating said Librarians from Librarians in other Universities and/or Librarians in colleges.
54. Even the affidavit filed by Legal Assistant of Gujarat Agricultural University does not make out such cases. The said university has filed an affidavit in SCA No.2338/1992, wherein it is averred and stated that:
"2. I say that the petitioner was appointed as Asstt. Librarian at Navsari Campus by order dated 10.12.1974 in the prerevised pay scale of Rs.325575 then applicable to the said post in the respondent University. She joined her post from 16.12.1974. I may point out that as per Statute 41 of the Gujarat Agriculture University, the library staff, including Assistant Librarian, belonged to the category of "other employees" who are known as nonteaching staff. The Librarian falls within the category of "Officers of the University" as per section 9 of the Gujarat Agriculture University.
3. I say that since the inception of the respondent university the revision of the pay scales of its teaching as well as non teaching employees is being made by and under the orders of the State Government. I say that for the teaching staff, the pay scales prescribed by the U.G.C., New Delhi, are made applicable by the State Government, upon the same being recommended by the I.C.A.R. (Indian Council of Agricultural Research). I say that the pay scales of the nonteaching staff are prescribed and revised by the State Government through its Gujarat Agriculture University, Sachivalaya, Gandhinagar on the lines of the pay scales prescribed or revised for the employees of the State Government.
3. I say that, as stated hereinabove, Assistant Librarians are not teachers of the University. They fall within the category of nonteaching staff. By Government Resolution dated 23.6.1976, the pay scales of nonteaching staff were revised w.e.f. 1.1.1973 and the same was applied by the University vide Notification dated 4.12.1976. By the said Notification the pay scale of Rs.325575 of Assistant Librarian was revised to Rs.500900 w.e.f. 1.1.1973. Again, the the State Government, by G.R. dated 18.1.1979, modified the pay scale of Asstt. Librarian and revised the same to Rs.700 1300 w.e.f. 1.1.1973. Accordingly, the petitioner was given the pay scale of Rs.7001300 w.e.f. 16.12.1974.
4. I submit that the Indian Council of Agriculture and Research, New Delhi by its letter dated 20 th June 1984 addressed to all the Vice Chancellors of Agriculture Universities informed that the Indian Council of Agriculture Research has agreed I n 39 C/SCA/2338/1992 CAV JUDGMENT principle to extend the benefit of upgradation in the salary scales to the Directors / Instructors of Physical Education and Librarians of Agriculture University. As regards Assistant Librarians it is stated that the Assistant Librarians should be given revised scale of Rs.7001600.
5. It is submitted that the Board of Management of Gujarat Agriculture University by a resolution dated 29th June 1985 resolved that the recommendations of the Academic Council vide item No.8010 of its 20th meeting held on 18th March 1985 for the revised pay scale of Rs.15006018001002000125/22500 for Librarian, pay scale of Rs.1200501300601900 for Deputy Librarian / Documentation Officer and pay scale of Rs.700401100 501600 for Assistant Librarian / Documentation officer with effect from 1st April 1980 together with recruitment rules and qualification as recommended by the I.C.A.R. under its letter dated 20th June 1984, be accepted and approved for implementation of the pay scale in Gujarat.
5. I say that the I.C.A.R., New Delhi, vide its letter dated 20.6.1984 decided to upgrade the salary scales of Assistant Librarians of all the Agricultural Universities in India w.e.f. 1.4.1980 from Rs.7001300 to Rs.7001600. An Item Note was placed before the Academic Council of the University vide Item No.54.7 Management vide Item No.80.10 for the upgradation in salary scales of Librarian and Assistant Librarians as recommended by the I.C.A.R. vide their letter dated 20.6.1984. A notification accepting the recommendation was issued on 19.7.1985, revising the pay scale inter alia of Assistant Librarian to Rs.7001600 w.e.f. 1.4.1980, after acceptance of the same by the State Government. The Notification also laid down that "no relaxation in the qualification for Librarian, Deputy Librarian / Documentation Officer and Assistant Librarian / Documentation Officer be made while implementing the above pay scales"."
55. Actually, the reply affidavit filed by Agriculture University gives out that ICAR had, at the material point of time, agreed, in principle, to extend the benefit of upgradation in salary, scales for the employees in the said two categories of Agriculture University. It also comes out from the said affidavit that ICAR had, at the relevant time, recommended different pay scales for various posts and categories in Agriculture University (different from the pay 40 C/SCA/2338/1992 CAV JUDGMENT scales recommended by UGC) and the said recommendations by ICAR and Agriculture University were forwarded to the State Government for approval.
56. Actually, the stand of the Agriculture University which flows from the affidavit, more particularly in para 3 of the affidavit, tacitly supports the assertions by said Librarians. The said affidavit states and declares that 'the Librarian falls within the category of "Officers of the University" as per section 9 of the Gujarat Agriculture University' and 'I say that for the teaching staff, the pay scales prescribed by the U.G.C., New Delhi, are made applicable by the State Government, upon the same being recommended by the I.C.A.R. (Indian Council of Agricultural Research)' and 'I submit that the Indian Council of Agriculture and Research, New Delhi by its letter dated 20th June 1984 addressed to all the Vice Chancellors of Agriculture Universities informed that the Indian 41 C/SCA/2338/1992 CAV JUDGMENT Council of Agriculture Research has agreed I n principle to extend the benefit of upgradation in the salary scales to the Directors / Instructors of Physical Education and Librarians of Agriculture University'.
57. The said affidavit does not lend support to the discrimination or differentiation amongst Librarians on the premise that the University is under UGC or outside its purview. Therefore, there is no basis to acknowledge and uphold such distinction amongst the Librarians in Agriculture University and the Universities which fall within the purview of or which follow UGC guidelines / directions.
58. In light of foregoing discussion and for the reasons mentioned above, the benefit of parity in matter of pay scales in salary for which the Librarians in other universities are considered eligible, cannot be denied to the petitioners in cadre of Librarian in Agriculture University. The distinction sought to be made out by the said 42 C/SCA/2338/1992 CAV JUDGMENT university is untenable. Therefore, the petitioners in the cadre of Librarian employed in Agriculture University shall be treated on par with Librarian in other universities and they would also be entitled for the same benefits which are granted, by this decision to the Librarians employed in other universities.
59. So far as the sole petitioner who was serving as librarian with Gujarat Ayurved University (i.e. the petitioner in SCA No.99/1993) is concerned, it is necessary to note that in respect of SCA No.99/1993, the respondent State has not filed affidavit but the respondent university has filed affidavit.
60. More important is the fact that the university has claimed that the petitioner abandoned the service and actually, the university's claim to the tune of Rs.14,118.48 is outstanding against the petitioner. The university has also stated and claimed that: 43 C/SCA/2338/1992 CAV JUDGMENT
"5. With reference to para 2, it is denied that the petitioner worked as Assistant Professor in College of Correspondence Studies, Udaipur, as alleged, and that the petitioner is Councellor Tutor in Library Science as alleged. Petitioner was possessing the requisite qualification of Librarian and therefore he was offered the post of Librarian with effect from 14th December 1979. Petitioner joined as such with effect from 26th December 1979. Petitioner proceeded on leave from 1st January 1980. Since the petitioner did not report for duty, petitioner's services were terminated with effect from 28th February 1980. Subsequently, on his application for review, the said order was cancelled and on his reporting for duty with effect from 16th September 1980, his absence till then was treated as leave without pay. Petitioner thereafter again proceeded on leave from 2nd May 1983 and subsequently did not join duty and sent a telegram that he was appointed as Librarian at Mohanlal Sukhadia University, Udaipur. His request for keeping lien was not granted. Petitioner was requested to hand over charge of the post, and petitioner in fact had come to the office on 26th May 1983, but again he went away. Thereafter a regular Departmental Enquiry was held against the petitioner since it was found that 695 books were missing and petitioner had, without giving any intimation to any once, proceeded to go to Udaipur. The University was obliged to file a suit against the petitioner, being Civil Suit No.180/86, for recovery of Rs.14,118.48. Petitioner is not entitled to be placed in the scale of Rs.15002000 from 26th December 1979 or in the scale of Rs.15002500 from 1st April 1980, as alleged. According to the pay scale of the University, petitioner was posted in the existing scale of Rs.500900 at the time of appointment. The following are the qualification for appointment to the post of Librarian for the University then: "Qualification:
1. Bachelor's Degree from a recognised University with Library Science.
2. Age: Not more than 30 years.
Desirable:
1. Master's Degree
2. Experience as Librarian
3. Knowledge of Sanskrit Pay scale: Rs.50025650EB2575030900.
6. With reference to paras 3 and 4, I say that the resolution dated 6th June 1989 is not applicable to the facts of the present case. Gujarat Ayurved University has not prescribed the scale prescribed by the University Grants Commission (U.G.C.).
Petitioner is, therefore, not entitled to any relief on the basis of the said Govt. Resolution. Petitioner is no longer in the service of the Gujarat Ayurved University. Petitioner is therefore not entitled to any relief. The demand of the petitioner is belated. Petitioner has acquiesced in the acceptance of salary and it is not open to the petitioner now to contend that he is entitled to salary structure as prescribed by the U.G.C. for teachers.
7. With reference to para 5, it is denied that this University is required to implement the U.G.C. scale as alleged. The University has not accepted the U.G.C. scale for Library Staff. The scale of pay prescribed by this University is the scale of pay framed by the State Government, and at present the scale of pay is 44 C/SCA/2338/1992 CAV JUDGMENT Rs.16402900, according to the 4th Pay Commission. The pay scales prescribed by the Govt. of India are not applicable to the staff of the Gujarat Ayurved University. Petitioner is not entitled to receive the pay scale of Librarian as prescribed by the Govt. of India, as alleged. Petitioner is not entitled to the benefit of letter dated 15th December 1982.
8. With reference to para 6, I say that the ratio laid down in Spl.C.A.No.872/85 is not applicable to the present case. Gujarat Ayurved University is a Mono Faculty University. It has Library in one Faculty of Ayurved only. The workload, qualifications, efficiency and responsibility were considered by the Desai Pay Commission while determining the pay scale of Librarian at this University. The pay scale prescribed by the Commission and approved by the Govt. of Gujarat is Rs.500900. Petitioner cannot be equated with the teaching staff of the University. Petitioner is not entitled to the scale of Rs.7001600 as alleged.
9. With reference to paras 7 and 8, petitioner is not entitled to the pay scale of Rs.15002000. The resolution dated 6th June 1989 is not applicable. Petitioner is not entitled to upgradation of his payscale, as alleged. Petitioner has abandoned the University and petitioner is liable to pay Rs.14,118.48 to the University for the loss of books. It is denied that the duties and responsibilities performed by the petitioner are equivalent to the duties and responsibilities performed by the U.G.C. Librarian as alleged. There is no breach of Article 14 or 16 of the Constitution of India, as alleged. It is denied that the concept of equal pay for equal work does not apply in the facts of the present case.
10. With reference to para 9, it is denied that petitioner is entitled to relief as claimed by him on the ground of identical work. The payscale has been prescribed by the Pay Commission on the basis of the nature of work, duties, functions and responsibilities. The judgment referred to is not applicable to the facts of the present case."
61. From the said affidavit also, it comes out that Ayurved University is not in purview by UGC and UGC has not issued recommendation in respect of faculty in Ayurved University either with regard to salary / pay scale or requisite qualifications.
62. Even if said fact (University is not in purview of UGC) is not taken into account, then also in light of the peculiar facts involved in 45 C/SCA/2338/1992 CAV JUDGMENT SCA No.99/1993 and the details mentioned by the University in paras 5 to 9 of the affidavit, the said SCA No.99/1993 does not deserve to be entertained. The respondent University has averred and stated that:
"... ... ... Petitioner proceeded on leave from 1st January 1980. Since the petitioner did not report for duty, petitioner's services were terminated with effect from 28th February 1980. Subsequently, on his application for review, the said order was cancelled and on his reporting for duty with effect from 16th September 1980, his absence till then was treated as leave without pay. Petitioner thereafter again proceeded on leave from 2nd May 1983 and subsequently did not join duty and sent a telegram that he was appointed as Librarian at Mohanlal Sukhadia University, Udaipur. His request for keeping lien was not granted. Petitioner was requested to hand over charge of the post, and petitioner in fact had come to the office on 26th May 1983, but again he went away. Thereafter a regular Departmental Enquiry was held against the petitioner since it was found that 695 books were missing and petitioner had, without giving any intimation to any once, proceeded to go to Udaipur. The University was obliged to file a suit against the petitioner, being Civil Suit No.180/86, for recovery of Rs.14,118.48. Petitioner is not entitled to be placed in the scale of Rs.15002000 from 26th December 1979 or in the scale of Rs.15002500 from 1st April 1980, as alleged. ..."
63. In light of said details, irrespective of other aspects e.g. whether University is within purview of UGC or not and whether the petitioner possesses prescribed possession or not, the petition does not deserve to be granted in light of the facts stated in the affidavit. The petition, therefore, deserves to be rejected.
64. So far as the petitioner who was employed as Librarian in Ayurved College i.e. the petitioner 46 C/SCA/2338/1992 CAV JUDGMENT in SCA No.531/1991 is concerned, it is not the claim even of the said petitioner that the said Ayurved College is affiliated to any University in the State. Further, the petitioner worked as employee in Ayurved College and he was not employee of University.
65. It is also not his case that the college (or even if it is treated as University) is under the purview of UGC. Any University, under or outside the purview of UGC, is not even joined as party respondent.
66. In this view of the matter, the petitioner's claim for pay scales cannot be entertained in present petition wherein the University is not party.
67. Besides this, even if aforesaid aspects are, for a while, not taken into account, it is relevant to note that the petitioners' claim is opposed by the Deputy Director of Indian System of Medicine and Homeopathy (respondent No.1) who 47 C/SCA/2338/1992 CAV JUDGMENT has filed affidavit wherein he has averred and stated in paragraph Nos.2 to 4 of the affidavit that:
"2. I say that the petitioner is a librarian who was originally working as a librarian in Junagadh in Gujarat Ayurved College, Junagadh. By virtue of the petitioner being associated with college of instruction the petitioner was entitled to receive the pay scale as prescribed by the Government of India under the University Grant Commission Scheme. Thereafter, the petitioner was transferred to Jamnagar by an Order dated 15.2.82. The post to which the petitioner was transferred was not attached to a college imparting instructions. The Jamnagar post was a post of librarian in the Manuscripe Library run by the Office librarian in this library did not entitle the petitioner to UGC pay scale, in as much as, the same were not applicable to the said library. The said library is not attached to or under the control of Gujarat Ayurved University at Jamnagar. The said library is under the exclusive set up of the first respondent. It may be pointed out that the petitioner was transferred to Jamnagar as per his own mutual request application for a mutual transfer with one Mr.K.R. Parmar, who was working as a librarian in the said library. The petitioner having asked for and got his request transfer, cannot now complain that he was not given UGC pay scale for the period of his posting at Jamnagar. It is submitted that the first respondent had under a mistake given the UGC pay scale to the petitioner and under mistake had paid the petitioner's salary according to UGC pay scale. In this regard, it is submitted that erroneous excess payment to the petitioner came to light and immediately the decision was taken not to give the petitioner UGC pay scale. The petitioner had worked at Jamnagar Library from 2.3.82 to 26.10.90. It is submitted that for this period the petitioner is not entitled to UGC pay scale and the excess salary paid to him in this period has to be returned to the Government by the petitioner.
3. On discovery that the said posting at Jamnagar did not entitle the petitioner to a UGC pay scale, the petitioner had asked that he should be transferred elsewhere. Therefore, the petitioner has been transferred back to the Government Ayurved College, Junagadh where, at present, the petitioner is getting the higher UGC pay scale. However, for the period of the petitioner's service at Jamnagar the petitioner is not entitled to the UGC pay scale and hence the amount paid to the petitioner under mistake has to be refunded by the petitioner.
4. I reiterate that the transfer of the petitioner to Jamnagar was made specifically at his own request and as a mutual transfer. A clear recital to this effect has contained in the order of transfer dated 15.2.82, which has been annexed and marked AnnexC to the main petition."
68. In respect of SCA No.531/1991 also, the respondent State has not filed any affidavit. 48 C/SCA/2338/1992 CAV JUDGMENT
69. In light of said details, it becomes clear that the petitioner has failed to make out case for UGC pay scale. He cannot be considered eligible for said benefit. Any material, detail or data to support and justify said claim is not placed on record. Any ground to accept the petition and allow the claim / benefit i.e. pay scale of UGC / parity in pay scale recommended by UGC for Librarian is not made out.
70. It is pertinent that in his affidavit, the Deputy Director has averred and stated that:
"... ... ... Thereafter, the petitioner was transferred to Jamnagar by an Order dated 15.2.82. The post to which the petitioner was transferred was not attached to a college imparting instructions. The Jamnagar post was a post of librarian in the Manuscripe Library run by the Office librarian in this library did not entitle the petitioner to UGC pay scale, in as much as, the same were not applicable to the said library. The said library is not attached to or under the control of Gujarat Ayurved University at Jamnagar. The said library is under the exclusive set up of the first respondent. It may be pointed out that the petitioner was transferred to Jamnagar as per his own mutual request application for a mutual transfer with one Mr.K.R. Parmar, who was working as a librarian in the said library. The petitioner having asked for and got his request transfer, cannot now complain that he was not given UGC pay scale for the period of his posting at Jamnagar. It is submitted that the first respondent had under a mistake given the UGC pay scale to the petitioner and under mistake had paid the petitioner's salary according to UGC pay scale. In this regard, it is submitted that erroneous excess payment to the petitioner came to light and immediately the decision was taken not to give the petitioner UGC pay scale. The petitioner had worked at Jamnagar Library from 2.3.82 to 26.10.90. It is submitted that for this period the petitioner is not entitled to UGC pay scale and the excess salary paid to him in this period has to be returned to the Government by the petitioner."
71. Thus, in light of said details, irrespective of other aspects e.g. whether University is 49 C/SCA/2338/1992 CAV JUDGMENT within purview of UGC or not and whether the petitioner possesses prescribed possession or not, the petitioner does not deserve to be granted in light of the facts stated in the affidavit. The petition, therefore, deserves to be rejected.
72. Now, at this stage, it would be proper to deal with the claim by employees in the cadre of Registrar, Controller of Examinations and Accounts Officer. The petitioners in said cadre have taken out SCA No.10512/98 and SCA No.582/2000.
73. So far as the cadre of Registrar/ Deputy Registrar and Assistant Registrar is concerned, the said cadre is, undisputedly, covered under notification dated 27.7.1998 issued by Government of India, however, the said category are not covered under government resolution dated 7.9.1998.
74. The said notification also prescribes various 50 C/SCA/2338/1992 CAV JUDGMENT conditions, specifications / requirements, including requisite qualifications, to be eligible for recommended pay scales.
75. After, GoI issued the notification dated 27.7.1998, the State issued government resolution dated 7.9.1998, however, when the respondent State issued GR dated 7.9.1998, the respondent State did not include the employees serving in the category/ cadre of Registrar (or Controller of Examinations or Chief Accounts Officer). The said government resolution speaks about revision of pay scales for Universities and College Teachers, Librarian and Personnel in Physical Education 'on the lines of the Government of India' w.e.f. 1.1.1996. However, the said resolution dated 7.9.1998 does not include the post cadre of the Registrar / Deputy Registrar / Assistant Registrar.
76. Under the circumstances, learned AGP would contend that after considering relevant aspects and the duties and functions of the posts, the 51 C/SCA/2338/1992 CAV JUDGMENT State Government considered it appropriate to exclude the post / category of the Registrar and therefore, the said post is not covered under government resolution dated 7.9.1998 and the State Government prescribed separate pay scale for the said posts instead of adopting and applying the pay scale recommended by UGC and the Central Government.
77. It is true that the pay scale and/or comparison between the posts suggested or recommended by the UGC are, merely "recommendation" and not "directions" of UGC which the universities are statutorily obliged to comply and that when UGC issues any recommendation, the State Government in its discretion and in its wisdom and subject to its financial constraints and other relevant factors, may or may not adopt and accept such recommendation or may accept it partially.
78. There cannot be any dispute with regard to the fact that the State may or may not adopt / 52 C/SCA/2338/1992 CAV JUDGMENT implement the recommendations by UGC, more particularly the recommendations which impose financial burden on the State. However, when UGC prescribes or revises qualification and on that basis UGC / GoI also revise the pay scales and/or UGC / GoI recommend similar pay scale for different posts or recommends clubbing / grouping of different posts under same / one pay scale on the principle that the said posts are comparable, then while accepting such recommendation only in part or while refusing to adopt / accept such recommendation the State should demonstrate that other recommendations are not opposed or rejected arbitrarily or irrationally but on sound principles and for just and valid reasons.
79. However, the respondent State overlooks that on one hand the respondent State accepted - in principle - the decision, instruction and guidelines notified and declared by said notification and on other hand the State has failed to show any cogent and valid material or 53 C/SCA/2338/1992 CAV JUDGMENT data or justification and also failed to demonstrate any ground or criteria for segregating or for taking out the post of Registrar from the group of posts covered under said notification by GoI and for not accepting the recommendation of UGC and the decision of GoI.
80. In case where it is established that the discretion is exercised irrationally or arbitrarily and apparently equivalent or comparable posts have been discriminated and when it is alleged that such discrimination is exercised and differentiation is made arbitrarily or irrationally and without any justification, then the questions (a) whether relevant factors have been taken into account or irrelevant factors have been considered; (b) whether the factors which have been considered have nexus with the main issue viz. fixation of salary / appropriate pay scale and comparable features of posts; (c) whether the decision is irrational, 54 C/SCA/2338/1992 CAV JUDGMENT would arise and the State should, with aid of cogent and credible material and data, demonstrate that the differentiation is just, rational, reasonable, necessary and valid.
81. If Government's decision - action are assailed on any of above mentioned or such other ground then Court may examine such decision and test the premise and manner of exercise of discretion by the State Government on the touchstone of reasonableness so as to find out as to whether the State Government's decision is vitiated by arbitrariness or discrimination or irrational discretion.
82. The decision by the respondent with reference to the post of Registrar cannot be sustained because said decision is not based on or not supported by proper reason and distinguishing factors and material.
83. At this stage, it is relevant to mention that so as to support and justify their claim, the 55 C/SCA/2338/1992 CAV JUDGMENT petitioners (in Special Civil Application No.582 of 2000) have relied on the communication dated 10.9.1984 issued by the UGC, wherein UGC recommended that the pay scale of Registrar should be that of Professor and the pay scale of Deputy Registrar should be that of Reader and the pay scale of Assistant Registrar should be that of Lecturer and that its recommendations have been approved by Government of India. It is relevant to note clause (i), (ii) and (iii) of said communication by UGC dated 10.9.1984 which read thus:
"(i) The scale of pay of Registrar will be that of a Professor viz. Rs.15002500.
(ii) The scale of pay of Deputy Registrar will be that of a Reader viz. Rs.12001900.
(iii) The scale of pay of Assistant Registrar will be equated with that of a Lecturer, namely Rs.7001600."
84. On strength of the said communication dated 10.9.1984 by UGC, the petitioners, in the cadre of Registrar, claim that the said communication acknowledges and declares that the employees in cadre of Registrar are in cadre equivalent to teaching staff and they are entitled for pay 56 C/SCA/2338/1992 CAV JUDGMENT scale for teaching staff.
85. Further, reliance is also placed on communications dated 22.7.1998, 23.9.1998 by the Government of India whereby the Government of India conveyed and clarified that it had decided that the pay scale of Registrar and other Administrative Offices in Central Universities would be revised as recommended by UGC.
86. The petitioners have also placed reliance on a communication dated 2.11.1988 by GoI to UGC. The petitioners have, however, relied more on AnnexureI to the said communication dated 2.11.1988. The said AnnexureI to the communication dated 2.11.1988 prescribes qualifications for the post of Registrar / Deputy Registrar / Assistant Registrar and equivalent posts. In GoI's notification dated 2.11.1998 below quoted eligibility criteria / qualification are prescribed for the post of Registrar. The said notification prescribes that:
"REGISTRAR AND EQUIVALENT POSTS:57 C/SCA/2338/1992 CAV JUDGMENT
1. A Post Graduate degree with at least 55% marks or its equivalent grade.
2. At least 15 years of experience as Lecturer / Reader of which 8 years should be in Reader's grade with experience in Educational Administration.
OR Comparable experience in research establishments and other institutions of higher education.
OR 15 years of administrative experience of which 3 years as Deputy Registrar or an equivalent post. DY. REGISTRAR AND EQUIVALENT POSTS:
1. A Post Graduate degree with at least 55% marks or its equivalent grade.
2. 8 years as a Lecturer in a college or a University with experience in educational administration.
OR Comparable experience in research establishments and other institutions of higher education.
OR 8 years administrative experience as Assistant Registrar or in a post carrying a scale of pay of Rs.22004000."
87. It is claimed that the qualification for the post of Registrar is similar to the qualification required for teaching staff and that prescribed standard / requirement and criteria for the post of Registrar also demands 15 years / 8 years experience as teaching staff. That is one of the prescribed requirements / criteria for the post of Registrar. The said petitioners have tried to justify their claim for parity on strength of said details. The said details about 58 C/SCA/2338/1992 CAV JUDGMENT qualification and experience mentioned by the petitioners (in SCA No.2338/92) are not denied by the respondent. Any other contrary details, which may establish or even indicate that the qualification / experience etc. for the cadre of Registrar are not placed on record by the State or any University.
88. In present case any material, the respondent State has not placed on record any data or details to support and justify its action and decision and any justification in support of impugned decision and/or against the details mentioned by the petitioners are not placed on record / is not made out in the reply affidavit. The affidavit does not reveal or explain which details, data, facts, factors, criteria, material were taken into account before taking impugned decision. Except the contention that 'recommendation' or even direction by UGC (which involve and impose financial burden on the State) are not binding to the State any other ground to 59 C/SCA/2338/1992 CAV JUDGMENT justify the decision for not accepting UGC's recommendation and/or the notification by the Central Government is not made out and any explanation is not offered.
89. On the other hand, so as to demonstrate that the decision of the State is arbitrary and unreasonable the petitioners have, as mentioned above, claimed that the qualification for the post of teaching staff and Registrar are similar. Reliance is placed on communication dated 2.11.1988 as well as communication dated 10.9.1984 and the notification dated 22.7.1988 and it is claimed that according to the said specification (which emerge from communication dated 2.11.1988 and the notification dated 27.7.1988) requirement of 8 years experience / 15 years experience as Lecturer Post Graduate Degree with 55% marks is considered necessary qualification for post of Registrar.
90. In light of the eligibility criteria prescribed vide 22.7.1988 and 2.11.1988 it is 60 C/SCA/2338/1992 CAV JUDGMENT claimed that when qualification prescribed for the post of Registrar are on par with teaching staff, then the State should not discriminate the post of Registrar in the matter of pay scales.
91. At this stage, it is also relevant to note that one of the principal and major grounds on which the claim is raised and parity is demanded, is that until 1973 the posts of Registrar / Deputy Registrar / Assistant Registrar in the Universities were considered on par with Professor / Reader / Lecturer and their pay scales were also accordingly fixed, however, the said parity came to be disturbed after 1973. The said submission and assertion are not denied or disputed by the respondents. It is claimed that such new situation and consequent anomaly arose because the Government merged the administrative staff of the Universities with government employees. So as to justify the claim, the petitioners in SCA No.582/2000 have averred and stated that:
61 C/SCA/2338/1992 CAV JUDGMENT
"5. The petitioners respectfully submit that the posts in the administrative staff are the posts like Registrar, Dy. Registrar and Controller of examinations, the Chief Account Officers and equivalent posts in a University. If one compares the functional attributes between the Registrar or Controller of examination or Chief Accounts Officers on one hand the Professors or Lecturers on the other, one will find that the post of Registrar or Controller of examination and like carry with them more responsibilities, greater accountability and have an added element of sensitiveness in discharge of duties. While the kind of duties of Registrar and that of a Professor would apparently be different, these administrative officers are required to discharge functions of varied nature and vast magnitude justifying parity in monetary reward if not higher remuneration.
5.1 The Registrar of University is of Supreme Administrative Head of the Institution dealing with all the areas of the administrative net work of the University, the Dy. Registrars or Assistant Registrars perform similar functions. The Controller of Examinations is in charge of conducting and supervising of various examinations in the various academic faculties, affiliated colleges and teaching departments of the University. The Chief Account Officer is in charge all the financial matters. In the advanced times of our society when the academic activities have spread to unchartered areas, number of new courses are being introduced for study, and general awareness on education is on increase, the administrative work in the universities has gone up by leaks and bounds. The government of the day has to set up, in addition to the statutory universities already functioning new universities or other teaching institutions like deemed universities and open universities like Indira Gandhi Open University which cater to the fresh needs of the society and the educational aspiration of the citizens. The widespread development in the academic areas only indicate that the corresponding administrative work related to such activities have gone up both in quality and volume.
5.3 The petitioners respectfully submit that the proposal of upgradation of the scales of pay attached to the posts of Registrars, Deputy Registrars and its equivalent posts in the central universities was under active consideration of the University Grants Commission and Government of India. Respondent No.7 University Grants Commission by its letter dated 10.9.1984 addressed to the ViceChancellors of the central universities conveyed that the acceptance of proposal for upgradation. Accordingly the following decisions were conveyed.
(i) The scale of pay of Registrar will be that of a Professor viz. Rs.15002500
(ii) The scale of pay of Deputy Registrar will be that of a Reader viz. Rs.12001900.
(iii) The scale of pay of Assistant Registrar will be equated with that of a Lecturer, namely Rs.7001600.
(iv) The scales of pay of the posts of Controller of Examinations, Deputy Controller of Examinations and Assistant Controller of Examinations will also be revised to maintain their parity with corresponding posts of Registrar, Deputy Registrar and Assistant Registrar, receptively.
(v) The Finance Officers in the Central Universities are appointed by drawing officers belonging to the India Audit and 62 C/SCA/2338/1992 CAV JUDGMENT Accounts Service on deputation. This system of appointment on deputation will, by and large, continue. On the revision of pay scales of Registrar, the Finance Officers can also be appointed in the Central Universities in the scale of pay ranging from Rs.2500, depending upon the grade pay they are drawing in their parent office.
5.4 It was interalia suggested that the existing procedure of recruitment and qualifications are also required to be reviewed and as in the case of teachers, certain improved qualifications were prescribed for recruitment to the post of Registrars etc. The qualifications have been fixed by the Universities Grants Commission for the post of Registrars, etc. the same qualifications are in force at present. 6.1 it is submitted that an anomalous situations has been created by the respondent state government the discrimination of the administrative staff of the universities, when it has accepted the recommendation of 5th Pay Commission and revised payscales accordingly for the government employees w.e.f. 1.1.1996. The comparison of old and revised scales of pay go to show, for instance, that old scale of Rs.37005700 is revised to 120003751800, while 45007300 has been hiked to 1430045022400. It is respectfully submitted that though the state government has after 1973 merged the Administrative staff of the Universities with government employees in the matter of pay. A situation has been obtained today where the invidious discrimination arises between the administrative staff officers and state government employees who are supposed to be in uniform category of pay. Annexed hereto as AnnexureG is the copy of the Resolution dated 7.1.1998 passed by the respondent No.2 applying the revision in pay scales for the government employees as per the Fifty Pay Commission."
92. In the communication dated 10.9.1984 by UGC, UGC has mentioned that:
"the scale of pay of Registrar will be that of Professor ... ... ... of Deputy Registrar will be Reader ... ... ... and Assistant Registrar will be equated with Lecturer."
93. When similarity and parity in the matter of prescribed qualification is demonstrated and when it is also shown that UGC and GoI have accepted said norms, then the State should make out strong justification for deviation in matter of pay scale and salary in case of employees in cadre of Registrar and to support the deviation and 63 C/SCA/2338/1992 CAV JUDGMENT differentiation as well its decision to prescribe and implement different pay scales for the post of Registrar. In absence of legally sustainable ground for distinguishing and segregating the post of Registrar from the group of cadre / posts specified by GoI in the notification (on the basis of UGC's recommendation) and/or to support and justify its decision of treating the said post purely administrative and not treating it on par with teaching staff and in absence of legally sustainable strong justification by the State to reject the claim that the post in cadre of Registrar should be bracketed with teaching staff, the respondent's decision cannot be considered just and reasonable.
94. At this stage, it is not out of place to mention that on one hand, the State has failed to place on record relevant and necessary material to justify the differentiation made by the State as well as its decision and on other hand, it has also failed to demonstrate that (a) the 64 C/SCA/2338/1992 CAV JUDGMENT eligibility criteria prescribed by GoI / UGC for the cadre of Registrar - including the criteria prescribed vide said communication dated 22.7.1988 - are not only different but higher than the criteria prescribed by the State; (b) the respondent State failed to establish other factors which would facilitate comparison e.g. difference in duties of Registrar and teaching staff, difference in their responsibilities, duty hours, quantity and quality of work, job specifications, etc. and that the cadre of Registrar cannot be equated with teaching staff;
(c) the respondent has not placed on record relevant and cogent material/data or even any details about other eligibility criteria applicable for said post in the Universities in the State and/or details about duties of the employees on said post are not placed on record to demonstrate that eligibility criteria and/or duties prescribed by State for the said post in the universities in the State are different and lower than the criteria prescribed by GoI / UGC. 65 C/SCA/2338/1992 CAV JUDGMENT
95. It is pertinent to note and necessary to mention that though the State Government has claimed that the qualifications prescribed by Government of India and UGC are higher than the qualifications prescribed by the State Government for the said post, however, the State has miserably failed to demonstrate this aspect and also failed to support, substantiate, justify and establish its said claim. The respondent State has not even specifically denied the details mentioned by the petitioners with regard to their responsibilities and duties. It is relevant to note that the assertions by the petitioners - more particularly in paras 5 and 5.1 of SCA No.582/2000 are not denied and any contrary details and facts are not mentioned and any material to controvert said details are not stated / not placed on record. The respondent State has failed to place on record comparative statement which would show the difference, if any, in respect of qualification or even in 66 C/SCA/2338/1992 CAV JUDGMENT respect of any other eligibility criteria or even in respect of other factors which are ordinarily considered for determining similarity or differences.
96. The respondent State has not been able to show any distinguishing feature from amongst relevant criteria which would lend support tot he respondent's decision. In present case the State has failed to place any data on record which would explain the rationale behind the State's decision. The respondent State has also failed to establish that the said post / cadre is purely administrative and it cannot be treated on par with teaching staff. This backdrop and above discussed absence of justification establish that the stand of the respondent State and said decision are irrational.
97. Of course, the respondent has filed consolidated affidavit in response to Special Civil Application Nos.582/2000, 808/2009 and 10512/1998. From said consolidated affidavit it 67 C/SCA/2338/1992 CAV JUDGMENT has emerged that in their entire affidavit the respondents have concentrated on only one contention viz. that the notification issued by the Government of India contains merely recommendation of UGC and suggestions of UGC and they are not in nature of directions and that even the directions by UGC would be applicable and binding to the universities and not to the State Government, more particularly when the recommendations or even direction by UGC involve and impose financial burden on the State Government. The said affidavit is, however, bereft of any relevant details, material and data or reasonable and sustainable explanation for such partial acceptance - implementation of UGC / GoI notification and/or recommendations. The affidavit does not contain any details or base or ground to justify differentiating, except repeatedly emphasising that it (State) is supreme and UG's recommendations are not binding and that it may accept or may not accept, any justification or scientific data or rationale for 68 C/SCA/2338/1992 CAV JUDGMENT its decision is not made out in the affidavit.
98. For the aforesaid reasons, the decision of the respondent State to segregate and to take out the cadre of Registrar (though included in and covered under GoI's notification dated 27.7.1998) while issuing government resolution dated 7.9.1998 and the decision of the respondent State to not consider the said cadre, in matter of pay scale and salary on par with teaching staff, cannot be sustained, more so when the respondent State has failed to even prima facie demonstrate that the qualification and eligibility criteria prescribed by UGC / GoI for the post in cadre of Registrar are not applicable to and/or are different from the qualification and criteria prescribed for the said cadre in the State universities and that the qualification and eligibility criteria prescribed by UGC / GoI are higher than the qualification and eligibility criteria prescribed for the post in the said cadre in the State universities. The respondent 69 C/SCA/2338/1992 CAV JUDGMENT has failed to demonstrate and establish that there are good and sufficient and cogent reasons for not equating Registrar's post with teaching staff in respect of and in the matter of pay scale and salary.
99. Having regard to the aspects discussed above and in light of the foregoing discussion, it has emerged that the claim by the petitioners - employees in the cadre of Registrar for parity, in matter of pay scale and salary, with teaching staff, is justified and deserves to be accepted and granted.
100. Of course, the decision as to which corresponding post / cadre in teaching staff will be equivalent to the post held (in nonteaching staff) by each petitioner and with which post in teaching staff they can be equated and their pay scales can be fixed - adjusted will have to be and can be taken by the respondent State. Further, such decision will depend on the qualification / experience of concerned 70 C/SCA/2338/1992 CAV JUDGMENT petitioner. The said process of verification, determination and appropriate fixation / adjustment will have to be taken by the respondent State by taking into account the qualification which the petitioner possessed and the post he held, at relevant time.
101. Now, so far as Controller of Examinations (2 petitioners in SCA No.10512/98 and 2 petitioners in SCA No.582/2000) and Chief Accounts Officer (1 petitioner in SCA No.582/2000 and 2 petitioners in SCA No.10512/1998) are concerned, it is relevant to mention that according to said petitioners, the said two posts / cadre viz. Controller of Examinations and Chief Accounts Officer are not included in the government resolution dated 7.9.1998 and said posts are not placed on par with teaching staff.
102. Actually, on reading the notification and the government resolution, it emerges that the said two posts are not included even in the recommendation by UGC and/or in the notification 71 C/SCA/2338/1992 CAV JUDGMENT dated 27.7.1998 issued by Government of India.
103. Thus, when UGC and Government of India did not find the case of Chief Accounts Officer and the Controller of Examinations on par with teaching staff or on par with even the case of the employees in the cadre of Librarian, Personnel of Physical Education and/or Registrar, the employees in the said two categories cannot expect to succeed on strength of said notification and government resolution issued by GoI and Government respectively but they must independently make out case for their claim that they should be treated on par with teaching staff.
104. However, the employees in the category / cadre of Controller of Examination or Chief Account Officer / Account Officer have, failed to place any material on record to facilitate comparison of the eligibility criteria as well as the functions and duties of employees in said two cadre with the eligibility criteria and duties by 72 C/SCA/2338/1992 CAV JUDGMENT employees in equivalent posts in the category of teaching staff; to support the claim that the category / cadre of Controller of Examination and Chief Account Officer/ Account Officer should be considered on par with teaching staff.
105. The employees in the said two cadre (Controller of Examinations and Chief Accounts Officer) have placed reliance on communication dated 23.9.1998 by Government of India and it is claimed that by said communication it is clarified that the Controller of Examination and Finance Officer will be given same pay scale as Registrar. It is, therefore, claimed that the said posts should be considered equivalent to Registrar and they should also be included in academic staff.
106. However, what is important on this count is that there is no material worth its name to justify the claim or to lead the Court to the conclusion and to support the conclusion that there is parity between the said two posts and 73 C/SCA/2338/1992 CAV JUDGMENT academic staff on any count e.g. with regard to qualification, experience, job specification, duty hours, responsibilities, number of duties and functions. There is nothing on record to establish that the employees in said two cadre are entitled for parity in matter of pay scales with teaching staff. The concerned petitioners have failed to place any material on record to support and justify that they can be bracketed with teaching staff (of university or colleges) and/or that their posts and their functions / duties are similar to and on par with the teaching staff.
107. Except slight reference in the communication dated 10.9.1984 by UGC (which speaks about parity between cadre of Controller of Examinations with the cadre of Registrar), there is hardly any material wherefrom reference to the post in the cadre of Controller of Examinations and/or Chief Accounts Officer, can be found. Any other material which would establish and justify the 74 C/SCA/2338/1992 CAV JUDGMENT claim that the post of Controller of Examinations and Chief Accounts Officer should be placed at par with teaching staff is not available on record.
108. Even the notification dated 27.7.1998 does not include the post of Controller of Examinations and Chief Accounts Officer.
109. The petitioners have placed reliance on communication dated 2.11.1988 by Government of India to UGC. The said communication makes reference to the post of the Registrar as well as other two categories. However, the said communication does not reflect any details in light of which or on strength of which any conclusion with regard to claim for parity (in matter of pay scales or for any purpose) with teaching staff can be made or even any support can be derived.
110. It has emerged that neither any material is placed on record nor any case is made out which 75 C/SCA/2338/1992 CAV JUDGMENT would persuade and convince this Court to hold that the posts in the cadre of Controller of Examinations and Chief Accounts Officer are on par with teaching staff and that there is similarity and parity in matter of qualification and experience required for teaching staff and the said post in the category of nonteaching staff / administrative staff and that the duties and functions performed by the employees holding said post in administrative staff are similar to the duties and functions of teaching staff.
111. As regards the petitioners in the said two cadre there is no material which can lead the Court to the conclusion that there is comparable similarity between the persons holding the posts in the said two cadre and the employees in teaching staff and between the qualifications and experience as well as other criteria prescribed for teaching staff (Lecturer or Reader or Assistant Professor or Professor) and the said two cadre / posts. There is nothing on record to 76 C/SCA/2338/1992 CAV JUDGMENT support and justify the claim that the said petitioners should be granted pay scale of equivalent post in teaching staff.
112. In this view of the matter, the claim by the petitioners in the cadre of Chief Accounts Officer (Chief Finance Officer) and Controller of Examinations that they should be equated with teaching staff and their pay scales should be revised and should be brought at par with teaching staff and claim by the petitioners in the said two posts / cadre and the relief prayed for by the petitioners employed in said two cadre cannot be accepted. Therefore, the claim by the employees in the said two cadre viz. Chief Accounts Officer and Controller of Examinations deserves to be rejected and are accordingly rejected.
113. So far as SCA No.808/2009 is concerned, the petition is constructed on selfcertification and belief and on tall claim that all cadre in the category of nonteaching staff are on par with 77 C/SCA/2338/1992 CAV JUDGMENT teaching staff. So far as SCA No.808/2009 is concerned, it is a stand alone petition inasmuch as it is filed by an association who claim representation of employees in nonteaching staff.
114. The said petition is as vague as it could be and it is bereft of any relevant details. For want of relevant details as well as relevant and necessary material, the relief prayed for by the association is incapable of being adjudicated and granted.
115. The union has not mentioned and clarified the cadre / categories of nonteaching staff in respect of which parity with teaching staff is prayed for. Even bare minimum details about different posts / cadre in respect of which comparison and parity with teaching staff is claimed, is also not found from the petition. Other basic, primary and bare minimum facts and details which may enable comparison with teaching staff and which may convince the Court that the 78 C/SCA/2338/1992 CAV JUDGMENT claimants are, in all respects, comparable with teaching staff, are not mentioned. The nature of the duties which the concerned persons perform and/or the qualification which the concerned persons hold visavis the qualifications required for the posts with which the concerned employees' claim parity and such other details are not available.
116. It appears that according to this petitioner all employees in nonteaching staff (i.e. entire nonteaching staff) are on par with and should be considered along with teaching staff in the matter of salary and pay scales. However, in absence of relevant details, the claim cannot be adjudicated.
117. Such petition is not maintainable and does not deserve to be entertained and it cannot be accepted. Therefore, the said SCA No.808/2009 stands rejected.
118. In light of foregoing discussion and for 79 C/SCA/2338/1992 CAV JUDGMENT reasons mentioned above, following order is passed:
(a) Special Civil Application No.808 of 2009 filed by an association viz. Gujarat State Universities Officers' Association (and other 5 employees) is not accepted and the said petition stands rejected;
(b) So far as Special Civil Application No.531 of 1991 is concerned, the said petition deserves to be rejected. Therefore, the said petition and the demand by the petitioner in said SCA No.531/1991 are rejected;
(c) The demand raised by the petitioner in the said Special Civil Application No.99 of 1993 does not deserve to be granted. Special Civil Application No.99 of 1993 does not deserve to be entertained. Therefore, the said Special Civil Application No.99 of 1993 and the demand by the petitioner in the said 80 C/SCA/2338/1992 CAV JUDGMENT petition are rejected;
(d) The claims by the employees employed in the cadre of Chief Accounts Officer (Chief Accounts Officer, Deputy Chief Accounts Officer, etc.) and in the cadre of Controller of Examinations are not accepted and the claims by the employees in the said cadre i.e. cadre of Controller of Examinations and Chief Accounts Officer including the claim for parity in pay scale and salary with teaching staff are rejected. Consequently, the petitions filed by / on behalf of the employees in said two cadre are also rejected;
(e) The demand and the claim raised by employees in the cadre of Librarian (Librarian, Deputy Librarian, Assistant Librarian) as well as the employees - petitioners in cadre of Physical Education (Director of Physical Education, Deputy Director of Physical Education) are partly 81 C/SCA/2338/1992 CAV JUDGMENT accepted in light of the fact that this Court, while deciding Special Civil Application No.872 of 1985, held and declared that the employees in said two cadre are entitled for parity in pay scale as well as for salary on par with teaching staff. For the purpose of pay scale, the respondent shall treat the post in the cadre of Librarian and Physical Education at par with equivalent / corresponding post in teaching staff;
(f) Likewise, the petition and claim by the petitioners in the cadre of Registrar (Registrar, Deputy Registrar) and the claim raised by the employees - petitioners in said cadre are partly accepted. The said petitioners - employees are entitled for parity, in the matter of pay scale and for salary on par with corresponding cadre / post in teaching staff. It is declared that for the purpose of pay scale, the respondent 82 C/SCA/2338/1992 CAV JUDGMENT shall treat the said post at par with equivalent post in teaching staff;
(g) It is, however, clarified that the parity shall be granted, provided each petitioner establishes that he / she possesses prescribed / revised qualification and experience for the posts in the cadre of Librarian, Registrar and Personnel in Physical Education and that he / she also fulfills the eligibility criteria prescribed for corresponding equivalent post in teaching staff;
(h) Subject to the said condition and rider, the claim of the employees in the said three cadre for parity in pay scale fixed for equivalent post in teaching staff is granted;
(i) For the purpose of pay scale, the respondent shall treat the post in the cadre of Librarian and Physical Education and Registrar at par with equivalent post in 83 C/SCA/2338/1992 CAV JUDGMENT teaching staff;
(j) Equivalence of the post shall be determined by taking into account and by applying the criteria / standard and guidelines recommended by UGC / GoI and on the basis of concerned employee's qualification, experience and other criteria which he / she possesses / possessed visa vis the qualification and other criteria prescribed by UGC in respect of equivalent post in teaching staff. The petitioners - employees in above mentioned three cadre, i.e. cadre of Librarian and cadre of Personnel in Physical Education and Registrar shall be eligible for revision in pay scale and appropriate fixation of pay scale at appropriate stage and payment of salary / arrears subject to above mentioned condition, with effect from January 1999;
(k) It is, therefore, directed that the said process shall be completed by the respondent 84 C/SCA/2338/1992 CAV JUDGMENT as expeditiously as possible and preferably within four months and thereafter the difference of salary (arrears) which become payable shall be paid to the concerned petitioners as expeditiously as possible and preferably within four months after the process is completed.
With the said directions and decison, the captioned petitions are accordingly disposed of. Orders accordingly.
Sd/ (K.M.THAKER, J.) Bharat 85