Gujarat High Court
Uday Hariom Vyas vs State Of Gujarat on 6 October, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6191 of 2003
With
R/SPECIAL CIVIL APPLICATION NO. 4581 of 2003
With
R/SPECIAL CIVIL APPLICATION NO. 14786 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UDAY HARIOM VYAS & 4 other(s)
Versus
STATE OF GUJARAT & 7 other(s)
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Appearance:
MR JA ADESHRA, MR DARSHAN DAVE FOR HL PATEL
ADVOCATES for the Petitioners
MR JAY UPADHYAY FOR MS ANUJA S NANAVATI, MR
VENUGOPAL PATEL FOR MR DIPEN DESAI for the
Respondents.
MR KM ANTANI, AGP for the Respondent(s) No. 1,2
NANAVATI AND NANAVATI(1933) for the
Respondent(s) No. 3
RULE SERVED BY DS(65) for the Respondent(s) No.
4,6,7,8
UNSERVED REFUSED (R)(70) for the Respondent(s)
No. 5
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C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/10/2021
CAV JUDGMENT
1. Heard learned advocate Mr.J.A. Adeshra, learned advocate Mr. Darshan Dave for HL Advocates for the respective petitioners, learned advocate Mr. Jay Upadhyay for learned advocate Ms. Anuja Nanavati, learned advocate Dr. Venugopal Patel for learned advocate Mr. Dipen Desai for the respective respondents and learned Assistant Government Pleader Mr. K.M. Antani for the respondent- State through video conference.
2. By these petitions, the petitioners have prayed that they have been appointed as Computer Programmer which according to them is a teaching post. The issue involved in all the petitions is whether the Computer Programmer is a "teaching post" or not? Therefore, all these petitions were heard analogously and being disposed of by this common judgment and order.
3. For the sake of convenience, Special Civil Application No.6191/2003 is treated as a lead case.
3.1) The petitioners are working as Computer Programmers in respective colleges Page 2 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 since number of years. The post of Computer Programmer was introduced in Gujarat University in the year 1984. The State Government approved computer course and accordingly, Gujarat University has framed the syllabus for computer course by prescribing theory and practical exams. The post of Computer Programmer necessitated the introduction of optional courses comprising one paper each in first and second year of graduation in the colleges run by and under Gujarat University. It is the case of the petitioners that the petitioners possessed necessary qualifications prescribed under the Rules and have been appointed on regular basis pursuant to regular selection process initially in the pay scale of Rs.550-900 which is equivalent to the pay scale of Librarian, Physical Instructors, Demonstrators and Tutors.
3.2) According to the petitioners, the pay scale of various categories of teaching staff of the University underwent upward changes, however, the petitioners and other programmers of the University were discriminated and they were not granted the pay scale equivalent to that of teaching staff as they were not being treated as Lecturers in the University and the pay scale of the petitioners stagnated for years Page 3 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 together.
3.3) According to the petitioners, the petitioners were discharging the duties of Lecturers as the petitioners were paper setters and examiners for theory papers of computer course and they were doing actual teaching work and were holding theory and practical examination of computer course.
3.4) According to the petitioners, procedure for appointment of "teaching staff"
is applied in case of appointment of Computer Programmers also and Joint Director of Higher Education has granted approval for filling up the post of Computer Programmers as a "teaching post". From 1984 onwards there was virtually no change in the pay scale of the petitioners and belatedly in the year 1998, the State Government issued a circular dated 3.8.1998 by which the pay scale of the petitioners was increased from Rs.550-900 to Rs.1640-2900 for the period between 1.1.986 to 1.1.1996, however, the benefit of the increased scale was given notionally and no arrears were paid to the petitioners. The said resolution further provided that the pay scale of the petitioners with effect from 1.1.1996 would be Rs.5500-9000.
3.5) The petitioners were therefore, Page 4 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 aggrieved by fixation of the pay scale by the State Government because similarly situated staff members were given the benefit of much higher pay scale and the case of the petitioners that the petitioners ought to have been treated as Lecturers by granting the pay scale of Rs.2200-4000 with effect from 1.1.1986 corresponding to the revised scale of Rs.8000-13500 with effect from 1.1.1996, was not considered.
3.6) The petitioners therefore, sought reference to the Anomaly Committee and made representation for redressal of their grievances with respect to difference in pay scale of the Computer Programmer and the Lecturer in Gujarat University.
3.7) It appears that some of the petitioners also approached this Court by filing Special Civil Application No.8021/1998, Special Civil Application No.8023/1998 and other connected matters wherein the issue of not granting pay scale of Lecturer was raised by the petitioners together with denial of actual benefit of arrears of salary pursuant to the resolution dated 3.8.1998. The petitioners in the said petitions contended that their qualifications, work load etc. require that they be placed in the scale of Lecturers. It Page 5 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 was also contended that in several other Universities in the State of Gujarat such as M.S. University, Baroda and Sardar Patel University, Vallabh Vidyanagar etc., the pay scale granted to the Computer Programmers was Rs.2200-4000 (pre-revised) and Rs.8000-13500 (revised).
3.8) The above writ petitions were disposed of by judgment and order dated 5.11.2001 directing the State Government to form a Committee comprising of Senor Officers of the Government to meet with the grievances of the petitioners and to permit the petitioners to make oral as well as personal representations.
3.9) Pursuant to the directions of this Court, the State Government set up a Committee as per its resolution dated 7.2.2002 and the petitioners made representations before the Committee in writing. Thereafter, the Committee did not take any decision and therefore, the petitioners filed Misc. Civil Application No. 2390/2002 and Misc. Civil Application No.1616/2002 for contempt. During the pendency of the contempt proceedings, the State Government by order dated 25.2.2003 rejected the representation of the petitioners holding that the Committee has Page 6 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 taken into consideration all the relevant materials and oral submissions made before the Committee and it was decided that the request of the petitioners to consider the persons working as Computer Programmers in the Non-Government Affiliated colleges in the category of teaching staff is not acceptable. It was further decided by the Committee that the representations of the petitioners for revision of pay with effect from 1.1.996 has already been considered by the Pay Anomaly Committee which has submitted its report to the Government and till the decision of the Government thereon is awaited, it would not be appropriate for the Committee to make any recommendation.
3.10) The petitioners therefore, being aggrieved by the said order dated 25.2.2003 have again preferred this petition. The petitioners thereafter, have amended the petitions in view of subsequent developments.
4. This Court (Coram : Hon'ble Mr. Justice P.P. Bhatt, As His Lordship was then) in order to give another chance to the respondents to explore the possibility of new Committee to look into the grievances of the petitioners passed the following order on 21.2.2018 :
"1. The petitioners, by way of the Page 7 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 present petitions under Article 226 of the Constitution of India, have prayed that they have been appointed as Computer Programmer which according to them, is a teaching post. In support of their case, they have produced certain documentary material to show that consistently they have been treated as teaching staff by the University and the Government Authorities.
2. Considering the submissions advanced before this Court, a suggestion was made to the learned Government Pleader to explore the possibility of new committee to look into the grievance made in the present petitions and try to resolve the dispute after careful consideration of the material produced with the petitions as well as the material that may be supplied by the petitioners.
3. Learned advocates for the petitioners submit that the lists of documents have been supplied to the learned Government Pleader.
4. Learned Government Pleader, upon instructions, states that the Chief Secretary will constitute an appropriate committee to look into the grievance which has been made in the present petitions and make endeavour to redress the said grievance after considering the material which has been given by the learned advocates for the petitioners to the learned Government Pleader.
5. In view of the aforesaid position, the Chief Secretary of the respondent- State Government is requested to constitute the appropriate committee for the above purpose. The petitioners may be given an opportunity to represent Page 8 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 their case before the committee after production of the relevant material. Thereafter, the committee shall consider the matter and consideration of the committee shall be placed before this Court through the learned Government Pleader within a period of three months. Let this case be listed for further hearing on 20.06.2018."
5. As the Committee could not complete the proceedings within three months, this Court again granted further time by passing the following order on 26.7.2018 :
"Mr. J.K. Shah, the learned
Assistant Government Pleader, upon
instruction, states that the matter
is under consideration and
further details from the
University is called for, and
therefore, some additional time may be given.
Considering the request made by the learned Assistant Government Pleader, the matter is adjourned to 9th August 2018. Since the direction for constituting of Committee was given on 21.02.2018 and three months' time was given to the State Government to consider the issue raised in the petition, it is expected from the State Government to ascertain the decision of the concerned University and thereafter, the decision be taken by the State Government.
Further, progress along with
necessary report in this regard be
intimated to this Court on 09th August Page 9 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 2018. The copy of this order be supplied to learned Assistant Government Pleader for onward communication for compliance."
6. It appears that thereafter the State Government again rejected the claim of the petitioners to consider the Computer Programmers on teaching post by the newly constituted Committee by order dated 14.8.2018.
7. Learned advocate Mr. J.A. Adeshra for the petitioners submitted that the Committee which was constituted earlier pursuant to the directions given by this Court in the year 2001 as well as the Committee constituted in the year 2018 have failed to consider the various documents relied upon by the petitioners in support of their claim to treat the Computer Programmers as teaching staff. He invited the attention of the Court to the following documents which are placed on record to show that Computer Programmers are required to be considered as teaching staff :
"(1) Certificate dtd. 10.05.2004 issued to Petitioner No.1 by Gujarat University inter-alia stating that he has assessed 60 answer books of F.Y.B.A Examination Page 10 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 held in April-May, 2004. (Annexure-J).
(2) Letter dtd. 24.2.2005 issued to Petitioner No. 1 by Gujarat University whereby he has been invited to act as Examiner in Computer Science at F.Y.B.Com & S.Y.B.Com(Annexure-K).
(3) Letter dtd. 22.2.2005 issued to Petitioner No. 1 by Gujarat University whereby he has been invited to act as Examiner in Computer Science at F.Y.B.A(Practical) & S.Y.B.A(Annexure- L).
(4) Letter dtd. 24.2.2005 issued to Petitioner No. 1 by Gujarat University whereby he has been invited to act as Examiner for Assessment in Computer Science at F.Y.B.A. & S.Y.B.A (Annexure- M).
(5) General Guidelines for Computer Practical Examination for S.Y.B.A/S.Y.B.Com/S.Y.B.Sc for March-
April, 2004 (Annexure-N).
(6)Resolution dtd. 6.6.2002 issued by the Education Department of the State Government (Annexure-O).
(7) Letter issued to Petitioner No. 4 & another person by Gujarat University whereby he has been invited to act paper setter and Examiner in Computer application at First B.Com (Vocational) (Annexure-P).
(8) Letter issued by Director of Higher Education to the Principal of L.D. Arts College (Annexure-Q).
(9)Identity card issued to Petitioner No. 4 inter-alia showing that he is Page 11 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 entitled to vote in the election of Gujarat University held on 8.11.1998 (Annexure-R).
(10)Circular of Gujarat University dtd. 21.4.2003 inter-alia stating that Computer programmers are treated as teaching staff (Annexure-S).
(11)Letter dtd 17.6.1993 addressed by Gujarat University to the Additional Chief Secretary inter-alia stating that Computer programmers are treated as teaching staff (Annexure-T).
(12) Letter dtd. 21.6.1997 issued by the Gujarat University (Annexure-U).
(13) Letter dtd. 11.11.1993 issued by the Gujarat University granting approval to the appointment of petitioner no. 1 to the post of computer programmer. (Annexure-V).
(14) Letter dtd. 19.11.1993 issued by the Gujarat University granting approval to the appointment of petitioner no.2 to the post of computer programmer (Annexure-W).
(15) Letter dtd 2.12.1997 issued by the Gujarat University granting approval to the appointment of petitioner no. 5 to the post of computer programmer (Annexure-X) (16) Letter issued by the Gujarat University granting approval to the appointment of petitioner no.4 to the post of computer programmer.(Annexure- Y).
(17)Letter dtd 4.2.1993 issued by the office of commissioner of Higher Page 12 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 Education granting approval to the appointment of petitioner no.4 to the post of computer programmer w.e.f. 1.10.1992.(Annexure-Z) (18)Letter dtd 24.2.1988 addressed to the Treasury officer by Joint Director of Education along with the statement. (Annexure-AA).
(19) Certificate issued by the in-charge Principal of Dharmsinh Desai Institute of Commerce, Nadiad inter-alia given out details about petitioner no.3 (Annexure- BB).
(20) Letter dtd. 19.11.1993 issued by the Gujarat University granting approval to the appointment of petitioner no. 2 to the post computer programmer. (Annexure-CC).
(21) Later dtd. 27.1.1998 issued by the Gujarat University granting approval to the appointment of Shukla Mahesh J to the post of computer programmer. (Annexure-DD)."
7.1) Learned advocate Mr. Adeshra also relied upon the appointment order of the petitioner no.1 produced at Annexure-FF wherein the petitioner is appointed as "Vyakhyata" (Lecturer) in the subject of Computer Programmer. It was also pointed out that the Director of Higher Education has sanctioned the post of Computer Programmer as a teaching post. Reliance was also placed on the letter dated 5.3.2003 (Annexure-I) Page 13 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 addressed by Vice Chancellor of Gujarat University to Secondary, Higher Education department stating that post of Computer Programmers are teaching staff post. It was also submitted that the salary of Computer Programmers is paid from the teaching grant. It was submitted that the petitioners who are appointed as Computer Programmers are duly qualified and selected by a duly appointed Selection Committee on regular vacant post as per the Recruitment Rules of 1984 and 1991. It was submitted that the State Government grants approval for appointment to the post of Computer Programmer as teaching staff and therefore, the affiliated colleges can make appointment of teaching staff which is subject to approval by Gujarat University and only if a person is appointed as teaching staff, the approval of Gujarat University is necessary and in facts of the case, such approval is granted by Gujarat University which clearly shows that the petitioners are covered within the definition of teachers as per the provisions of Gujarat University Act, 1949. It was further pointed out that the educational qualifications of Computer Programmer and Lecturer in Computer Science are the same, however, requirement of some of the qualifications of Computer Programmer is Page 14 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 higher than the Lecturer in Computer Science. It was also submitted that the Computer Programmer and Lecturer in Computer Science are doing direct teaching work and the responsibility and work load also are same. It was submitted that the Computer Programmers are taking 30 practical periods whereas Lecturers in Computer Science are taking 18 practical periods. Reference was made to Gujarat University Ordinance 0.96 to show that the work load of all the petitioners are mentioned in the said ordinance which is prepared only for "teaching staff".
7.2) It was submitted that the Computer Programmers and Lecturers in Computer Science are doing actual teaching work and are holding theory and practical examination for computer course. It was therefore, submitted that Gujarat University as well as the Director of Higher Education have always treated the Computer Programmers and Lecturers in Computer Science at par as "teaching staff". It was also submitted that when the Computer Programmers are declared surplus, the same treatment is given to them as Lecturers in Computer Science. It was submitted that all the petitioners are entitled to vote in Senate election wherein Page 15 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 only "teaching staff" can vote and therefore, it was submitted that the petitioners cannot be treated as non teaching staff.
7.3) Reliance was also placed on the document produced at Annexure-DD(page-83 of the petition) whereby approval was granted by the Gujarat University for appointment of one of the petitioners. It is submitted that it is not in dispute that Gujarat University has granted approval to the appointment of the petitioners as teaching staff and reference was made to Annexure at page nos. 75 to 78 of the petition.
7.4) It was therefore, submitted that the High Powered Committee which was appointed pursuant to the directions given by this Court in the year 2001 as well as again in the year 2018 has ignored the above facts by considering the Computer Programmers as a non teaching staff relying upon the minimum qualification prescribed by the University Grants Commission. It was submitted that both the Committees have ignored the work done by the petitioners in the respective colleges by holding that Lecturer in Computer Science Program and Computer Programmer are two different posts having different qualifications. It was submitted that the Committee has ignored that the education Page 16 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 qualifications of the petitioners are similar or more than that of Lecturers in Computer Science.
7.5) Learned advocate Mr. Adeshra therefore, submitted that the Committee has not considered the documentary evidence on record which clearly show that the petitioners are in fact doing the same work as that of Lecturer in Computer Science. It was further submitted that considering the facts of the case of the petitioners though their post is labeled as "Computer Programmer", in fact are discharging their duties as that of Lecturer in Computer Science. It was submitted that the Computer Programmers appointed in other Universities are non teaching staff doing the work of data entry, developing software for preparing examination results, preparation of admission of students on merits, up-gradation of computer hardware, network maintenance etc. and for that no approval of such Computer Programmer is required from the Gujarat University or Director of Higher Education; whereas in facts of the case of the petitioners, who are doing actual teaching work in undergraduate University affiliated colleges, the approval of the Gujarat University and Director of Higher Education is given considering the petitioners as Page 17 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 "teaching staff".
7.6) It was therefore, submitted by that the petitioners have been able to establish from the facts and evidence on record that the findings arrived at by the State Government are arbitrary, illegal and contrary to the record and therefore, the petitioners are entitled to be considered as a teaching staff and therefore, also entitled to the pay scale received by the teaching staff with effect from 1.1.1996. It was therefore, prayed that the salary of the petitioners be fixed accordingly and the petitioners are required to be paid the difference in salary with effect from 1.1.1996 till date and other consequential benefits within the stipulated time.
8. Learned advocate Mr. Darshan Dave appearing for H.L. Patel Advocates for the petitioners in Special Civil Application No.4581/2003 and Special Civil Application No.14786/2010 adopted the submissions made by the learned advocate Mr. Adeshra.
9. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani submitted that the petitioners are appointed as Computer Programmers in the Science college for the course of Computer Science introduced Page 18 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 for the science and commerce colleges in the faculty of B.Sc. and B.Com and educational qualification for the Computer Programmer is prescribed as under :
"QUALIFICATION FOR THE POST OF
PROGRAMMER IN AFFILIATED
SCIENCE/COMMERCE COLLEGE FOR GRADE RS. 2000-3500 (1) (i) M.C.A OR (ii) B.E. Computer science with 1st class.
OR (2) P.G. DEGREE with 1st class and University recognized P.G. Diploma in computer Science OR (3) (i) M.Sc or (ii) B.E. with Second Class And three years experience in Computer Programming in an educational institution or reputed institution.
OR
(4) Graduate with 1st class and
University recognized P.G. Diploma in Computer Science with 1st Class and two years experience of Computer Programming in an Educational institution or reputed institution.
OR (5) Graduate and University recognized P.G. Diploma in Computer Science with 3 years experience in affiliated college or a Deptt. of Statutory University.
OR (6) Graduate with Certificate in Computer Programming of at least 6 months duration from a recognised University and five years experience of Computer programming in affiliated college or Deptt. of a Statutory Page 19 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 University.
(7) Diploma in Computer Engineering OR Computer Technology of State Technical Examination Board of Government of Gujarat of duration of 21/2 years or more with First class and atleast one year experience in computer programming in Educational Institution or reputed institution.
(8) Diploma in Computer Engineering OR Computer Technical Education Board of Government of Gujarat of duration of 21/2 years or more with second class and atleast two years experience in computer programming in Educational Institution or reputed institution."
9.1) According to the learned Assistant Government Pleader Mr. Antani, the above qualifications are still in existence and therefore, the petitioners cannot be considered equivalent to that of Lecturer in Computer Science as Computer Lecturers are having separate cadre and therefore, educational qualifications are also different.
9.2) Learned Assistant Government Pleader Mr. Antani placed reliance upon the decision dated 21.1.2003 of the High Power Committee as well as decision dated 14.8.2018 of the Committee and submitted that both times even after 15 years, the Committee has decided that the Computer Programmers are not to be Page 20 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 considered as Lecturers in the cadre of teaching staff. It was therefore, submitted that the grievances raised by the petitioners are duly considered by the High Power Committee by two separate detailed reports wherein the High Power Committee consisting of Secretary (Higher and Technical Education) Education department, Secretary Legal department, Secretary Finance department and Acting Vice-Chancellor of the Gujarat University decided that the petitioners are not entitled to be considered as teaching staff because of the difference in their qualification as well as requirement of discharging functions which is to assist the Lecturers in Computer Science.
9.3) Learned Assistant Government Pleader Mr. Antani relied upon the decision of Supreme Court in case of P.U. Joshi and others v. Accountant General, Ahmedabad and others1 to submit that the questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotion pertain to the field of policy which is 1 2003 (2) SCC 632 Page 21 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 within the exclusive discretion and jurisdiction of the State, subject of-course to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory Tribunals, or the Court to interference in such policy decision.
9.4) Learned Assistant Government Pleader Mr. Antani also relied upon the decision in case of Punjab State Power Corporation Limited v. Rajesh Kumar Jindal and others2 in support of his submission that parity in pay scale of two posts depend upon various factors and in facts of the case, the High Power Committee has considered such factors for not granting parity to the post of Computer Programmers as that of Lecturers in Computer Science.
9.5) Learned Assistant Government Pleader Mr. Antani also relied upon the decision in case of Anand Yadav and others v. State of Uttar Pradesh and others3 to point out that qualifications prescribed for the post of Lecturer and that of Computer Programmer are different and once the prescribed qualifications are different, the question of equivalence is required to be left to the 2 2019 (3) SCC 547 3 2020 SCC Online SC 823 Page 22 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 University Grants Commission which is an apex body for appointment of the respective post. It was submitted that the Apex Court has also held that the employer ultimately being the best judge of who should be appointed and therefore, the choice was of the respondents who sought the assistance of an expert committee in view of representations of the petitioners and considering the composition of the Committee who after examination opined that the petitioners cannot claim parity with lecturer in Computer Science, then such decision of the Expert Committee is required to be upheld as High Power Committee has taken such decision after considering all the factors and submissions made by the petitioners.
9.6) It was therefore submitted that the petitioners cannot claim parity with the Lecturer in Computer Science and therefore, no interfere may be made by this Court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
10. Learned advocates appearing for the respective colleges have relied upon the affidavits filed by the competent persons on behalf of the colleges who have supported the Page 23 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 case of the petitioners that the prayers made by the petitioners are genuine and bona fide. After referring to the various documents on record, it was pointed out that the petitioners who are appointed as Computer Programmers are discharging similar duties as that of lecturer in Computer Science.
11. Having heard the learned advocates for the respective parties and having gone through the documents produced on record, it emerges that respondent University as well as the colleges are treating the petitioners as teaching staff. Even the Director of Higher Education has considered the petitioners as teaching staff. The petitioners have demonstrated by referring to various documents on record that they are discharging the same duties of teaching students equivalent to Lecturer in Computer Science.
12. It appears that in the year 1984 when computer course was first time introduced by Gujarat University to teach students the computer subject, the post of Computer Programmer was created and thereafter, the appointment of such Computer Programmers like the petitioners was subject to approval from the Directors of Higher Education as teaching Page 24 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 staff as well as subject to approval from Gujarat University as teaching staff. The appointment letters of the petitioners also describe them as a teaching staff; however, the pay scale given to the petitioners is that of a non teaching staff.
13. It is not in dispute that the petitioners are working since 1991-1992 onwards as full time Computer Programmers in the subject of computer on sanctioned and approved teaching post by Director of Higher Education, Government of Gujarat after selection procedure followed for appointment which is same as that of teaching post and the appointment of the petitioners are sanctioned and approved by the Gujarat University in the same way as is done for Lecturers in Computer Science. It is also not in dispute that the petitioners are discharging their responsibilities to teach theory papers and practical classes of computer science subject at graduate level, the work load of the petitioners are also cited in Ordinance No. 0.96 of the Gujarat University with other teaching staff. The petitioners are also working as University recognised theory/practical examiner/ paper setters at graduate level which is same as Page 25 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 Lecturer for other subjects. The petitioners as the Computer Programmer are discharging their job which clearly reflects as that of a teaching job. The petitioners have also completed refreshers courses orientation courses as approved by the University Grants Commission.
14. In view of above facts which are even supported by the respondent colleges by filing affidavit in support of the petitioners, findings arrived at by the High Power Committee in the year 2003 as well as in the year 2018 is contrary to the facts and evidence on record. The High Power Committee has been swayed away by the aspect of qualification prescribed by University Grants Commission only where as both the times in the year 2003 as well as in the year 2018, the Committee has ignored the facts and documentary evidence on record which clearly shows that there is no difference between the duties discharged by the petitioners and the duties discharged by Lecturers in Computer Science as both the petitioners as well as Lecturers in Computer Science are performing the duties of the teaching the computer subject at graduate level.
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15. In view of such undisputed facts, the findings arrived at by the Committee in the year 2003 as well as in the year 2018 are contrary to the facts that though both the posts of Computer Programmer and lecturer in Computer Science are different but as both the post-holders discharge the same duty of teaching the students of computer subject they should be treated at par. In such circumstances, the impugned decisions taken by the Committee are not tenable in law and on facts as both the times, the Committee has considered the theoretical prescription of qualifications for the post of Computer Programmer and Lecturer in Computer Science ignoring the factual matrix available on record to show that the petitioners who are appointed as Computer Programmers are in fact discharging the duties of teaching the computer subject to the students at graduate level equivalent to that of Lecturer in Computer Science and Gujarat University as well as the Director of Higher Education has already treated the petitioners as teaching staff and therefore, High Power Committee could not have taken a contrary decision by considering the petitioners as non teaching staff by depriving them the legitimate higher pay scale equivalent to that of teaching Page 27 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022 C/SCA/6191/2003 CAV JUDGMENT DATED: 06/10/2021 staff which is paid from 1.1.1996 to lecturers in Computer Science.
16. In view of the above, the decisions relied on by the learned Assistant Government Pleader Mr. Antani can be clearly distinguished as the High Power Committee appointed by the State Government pursuant to the directions issued by this Court have utterly failed to consider the submissions made by the petitioners with regard to the same nature of duties discharged by the petitioners equivalent to that of Lecturer in Computer Science.
17. In view of foregoing reasons, the petitions succeed and are accordingly allowed. The impugned decisions taken by the High Power Committee in the year 2003 as well as in the year 2018 are hereby quashed and set aside. The petitioners are entitled to the pay scale of lecturer in Computer Science with effect from 1.1.1996 and the arrears payable to the petitioners for such higher revised pay scale be calculated and paid to the petitioners within a period of 12 weeks from the date of receipt of a copy of this order.
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18. Rule is made absolute to the aforesaid extent. No order as to cost.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 29 of 29 Downloaded on : Sun Jan 16 21:51:48 IST 2022