Gujarat High Court
Director Of Technical Education & 2 vs Patel Chandrakant N Since Deceased Thro ... on 6 February, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1380/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1380 of 2016
In SPECIAL CIVIL APPLICATION NO. 4679 of 1996
With
CIVIL APPLICATION NO. 12700 of 2016
In
LETTERS PATENT APPEAL NO. 1380 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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DIRECTOR OF TECHNICAL EDUCATION & 2....Appellant(s)
Versus
PATEL CHANDRAKANT N SINCE DECEASED THRO HIS HEIRS &
2....Respondent(s)
=============================================
Appearance:
MR DHAWAN JAYSWAL, AGP for the Appellant(s) No. 1 3
MR HRIDAY BUCH, ADVOCATE WITH MR. JAVED S QURESHI, ADVOCATE for
the Respondent(s) No. 1.1 1.2 , 2 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/02/2017
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C/LPA/1380/2016 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) [1] By way of this appeal under Clause 15 of the Letters Patent, the appellants - original respondents seek to challenge order dated 04.01.2016 rendered by the learned Single Judge, by which the learned Single Judge has allowed the petition filed by the present respondents - original petitioners.
[2] Factual matrix of the present case is as under : [2.1] The original petitioners filed captioned petition, in which it has been stated that they are working as Physical Instructors in different Engineering Colleges. They have completed 16 years of service and therefore, they are entitled to selection grade of Rs.3700 - 5700 with effect from 01.04.1986 as per various Government Resolutions. It is stated that Physical Instructors of different faculties of Arts, Commerce, Science and Pharmacy are getting benefit of selection grade as and when they complete 16 years of service, whereas, Physical Instructors working in Engineering Colleges are not getting benefit of the same, thought they are entitled.
[2.2] The original petitioners joined services between January, 1969 to 1971. The petitioners got senior scale on completion of 8 years and on completion of 16 years of their service, they are eligible to get selection grade as per Government Resolutions. As per petitioners, Government Resolution dated 19.12.1983 was issued by the respondents, whereby the pay scale of Librarian and Physical Instructors of Non Government Arts, Commerce and Science Colleges Page 2 of 14 HC-NIC Page 2 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT were revised with effect from 01.04.1980. Physical Instructors were given benefit of selection grade and minimum qualifications for those who were already in service was Post Graduate, Diploma or Certificate or Degree in Physical Education. However, qualification of Ph.D. was not prescribed in the said Resolution. Again on 14.09.1988, pay scale of Teachers, Librarians and Physical Educational Personnel in Universities and Colleges were revised. However, said Resolution was not applicable to Engineering Colleges. In the said Resolution qualification of Ph.D. for Physical Instructors was not prescribed and concerned Physical Instructors got benefit of selection grade. Even by resolution dated 14.09.1988, it was prescribed that benefit of selection grade be given to the existing Physical Instructors even though they have not obtained Ph.D. degree. It is the say of the petitioners that on completion of 16 years of their service, when benefit of selection grade was not given to them, they made representation dated 11.04.1991. However, respondents gave reply dated 19.06.1991 and stated that the petitioners are not entitled to get selection grade since they are not fulfilling requirements stipulated in the Government Resolutions. The petitioners therefore, filed Special Civil Application No.6240 of 1995. Learned Single Judge disposed of the petition by directing the respondents to consider the case of the petitioners for grant of selection grade and also directed to pass speaking order, if the petitioners are not entitled for the same.
[2.3] Thereafter, respondent No.2 by order dated 29.03.1996 informed the petitioners that they are not entitled for selection grade since the petitioners are not fulfilling all the conditions stipulated in the Government Resolution dated 25.10.1989. The petitioners, therefore, filed captioned petition before this Court. Learned Single Judge by Page 3 of 14 HC-NIC Page 3 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT impugned order dated 04.01.2016 allowed the said petition and thereby held that the decision of the respondents dated 29.03.1996 denying the benefits of selection grade to the petitioners by applying requirements of paragraph No.9 of Annexure - V of Government Resolution dated 25.10.1989 is not correct and therefore, said condition is set aside. The respondents were directed to consider the case of the petitioners for selection grade from due date when they respectively completed 16 years of service applying original requirements contained in Government Resolution dated 18.08.1989 particularly bearing in mind paragraph No.10 of Annexure V read with paragraph No.11 of the Appendix to the said Government Resolution dated 18.08.1989. The appellants - original respondents have therefore, preferred present appeal.
[3] Heard learned AGP Mr.Jayswal for the appellants - original respondents and learned advocate Mr.Hriday Buch assisted by learned advocate Mr.Javed Qureshi for the respondents - original petitioners.
[4] Learned AGP submitted that the petitioners are not possessing Ph.D. degree or equivalent qualification as well as other requirements stipulated in Government Resolution dated 25.10.1989 and therefore, when they are not fulfilling requirements stipulated in Government Resolution, benefit of selection grade was denied to them. It is contended that merely because the petitioners have completed 16 years of service, they are are not automatically eligible for said benefit.
[4.1] Learned AGP thereafter, contended that Government Page 4 of 14 HC-NIC Page 4 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT Resolution applicable to Physical Instructors of Engineering Colleges is different from that of Physical Instructors working in other Colleges and Institutions. The petitioners are working as Physical Instructors in Engineering Colleges and therefore, they are governed by separate resolution. Physical Instructors working in different faculties other than Engineering faculties are governed by resolution applicable to UGC and subject to pay scales as prescribed in the said Government Resolution. So far as petitioners are concerned, Government Resolution dated 25.10.1989 would be applicable to them. Said resolution specifically provides different conditions and on fulfillment of said conditions, selection grade would be granted to the concerned Physical Instructors. It is therefore, submitted that when the petitioners are not fulfilling conditions stipulated in Government Resolution dated 25.10.1989, benefit of selection grade was denied to the petitioners.
[4.2] Learned AGP submitted that the learned Single Judge has not properly appreciated the important aspect of the matter and though resolution dated 25.10.1989 was not challenged, the learned Single Judge has set aside the requirement of paragraph no.9 of Annexure V of the said resolution. Therefore, impugned order passed by the learned Single Judge be set aside. In support of his contention, learned AGP has placed reliance on decision rendered by the Hon'ble Supreme Court in the case of Chandhigarh Administration through the Director, Public Instructions (Colleges), Chandhigarh v/s. Usha Kheterpal Waie and others reported in (2011) 9 SCC 645.
[5] On the other hand, learned advocate Mr.Hriday Buch appearing for the respondents - original petitioners has supported the Page 5 of 14 HC-NIC Page 5 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT reasons recorded by the learned Single Judge and submitted that Physical Instructors working in other faculties are given benefit of selection grade though they are not possessing qualification of Ph.D., whereas, only three petitioners who are working in Engineering faculties are discriminated by not giving benefit of selection grade on the ground that they do not possess Ph.D. degree. It is submitted that Physical Instructors who are appointed prior to date of issuance of Government Resolution dated 14.09.1988 are not required to get Ph.D. degree. It is further submitted that qualification of Ph.d. degree is required to be obtained by persons who are appointed after 1983 since qualification of Ph.d. degree came into existence with effect from 1983 and all the Physical Instructors who are appointed in Arts, Commerce and Science Colleges prior to 1983 are given selection grade though they are not possessing Ph.d. degree. It is further submitted that as per Government Resolution dated 14.09.1988, pay scales in Universities and Colleges were revised and as per clause - 9 of the said resolution, it was prescribed that for getting selection grade, minimum requirement is to possess Ph.D. degree. However, by way of clarification issued by Government vide Government Resolution dated 11.10.1989, it was provided that minimum requirement to get selection grade is to complete 16 years of service. Thus it is contended that Ph.D. degree is required for those persons who are appointed after 1983.
[5.1] Learned advocate Mr.Buch thereafter submitted that in State of Gujarat there are more than 500 Physical Instructors in all the colleges of various faculties, whereas in Engineering colleges there are only three physical instructors. It is submitted that more than 500 Physical Instructors working in various faculties and who are appointed Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT before 1983, have got selection grade even though they are not possessing Ph.D. Degree, but only three petitioners who are appointed before 1983 have not got selection grade and therefore, it is case of discrimination. It is therefore, submitted that learned Single Judge has rightly set aside the condition stipulated in Government Resolution dated 25.10.1989.
[5.2] Learned advocate Mr.Buch thereafter referred to Government Resolution dated 18.08.1989. Said resolution is issued for revision of pay scales of teachers in Engineering Colleges and other Degree level Technical Institutions. It is submitted that as per said resolution also, lecturers who have completed 8 years of service on 01.01.1986 will be given senior scale. It is further provided in the said resolution that every lecturer in the senior scale will be placed in selection grade of Rs.3700/ - 5700/ on certain conditions. However, there is no condition of possessing Ph.D. degree in teaching staff including lecturers. Learned advocate Mr. Buch submitted that Government Resolution dated 25.10.1989 is amendment to Government Resolution dated 18.08.1989. By way of said amendment, condition of obtaining Ph.D. degree or any equivalent published work was introduced only for Physical Instructors and not for other teaching staff and lecturers. There is no reason for introducing such requirement by way of amendment and that too only for Physical Instructors. It is therefore, submitted that aforesaid condition is discriminatory and violative of Article 14 of the Constitution of India and therefore, learned Single Judge has not committed any error by allowing the petition and giving directions to the respondents.
[5.3] Learned advocate Mr.Buch thereafter, referred to another Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT Government Resolution dated 24.12.1991 issued by the Government which is corrigendum to Government Resolution dated 18.08.1989. By said Government Resolution, once again it has been reiterated that every lecturer in the senior scale will be placed in selection grade of Rs.3700 5700 on fulfilling certain requirements. However, in such resolution, there is no reference with regard to Ph.D. degree. It is therefore, submitted that learned Single Judge has not committed any error while passing the impugned order and therefore present appeal be dismissed.
[6] We have considered submissions canvassed on behalf of the respective parties and we have gone through the materials produced on record. The issue involved in the present appeal is whether the original petitioners who are working as Physical Instructors in Engineering Colleges are entitled to Selection grade or not.
[7] Government issued Government Resolution dated 14.09.1988. Paragraph no.2 of the said resolution read as under : "2.Government has since considered this issue carefully and it has been decided that the pay scales of teachers in Universities and non Government and Government affiliated colleges and those of librarians and physical education personnel should be revised with effect from 1st January, 1986. The terms and conditions of revision of pay scales of teachers are mentioned in appendix - I and those of librarians and physical education personnel are mentioned in appendix - II appended to this resolution. The details of revised pay Page 8 of 14 HC-NIC Page 8 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT scales have been given in annexure I and the formula for fixation of pay in the revised scale is given in annexure - II to the appendices to this resolution."
[8] Appendix II of the said resolution provides for revision of pay scales of Librarians and Physical Education Personnel in Universities and Colleges. Para 9 of the said Appendix provides that every qualified Assistant Librarian and Assistant Director of Physical Education in the Universities who has been placed in Senior Scale will be eligible for promotion to the posts of Deputy Librarian and Deputy Director of Physical Education respectively in the pay scale of Rs.3700 - 5700, if they fulfill certain conditions. One of the condition in the said clause is that they should obtain Ph.D. degree or equivalent published work. However, by Resolution dated 18.08.1989, the Government has decided to revise pay scales of teachers in Engineering Colleges and other degree level Technical Institutions. Clause 11 of the Appendix to the said Resolution read as under : "11. Every lecturer in the Senior Scale will be placed in a selection grade of Rs.3700 5700.
(a) If he has completed 8 years service in the senior scale Or If he has at least 8 years service as a lecturer in an Engineering College and has 'total service' not less than 16 years;
"Total service" as mentioned above will be reckoned as 4/5 x (for duration of service as Tutor / Demonstrator / Assistant Lecturer in an Engineering College or Polytechnic after acquiring the requisite qualification and experience for the Page 9 of 14 HC-NIC Page 9 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT post of Lecturer of Engg. College) + Duration as a regular lecturer in Engineering College / Polytechnic after acquiring the requisite qualification and experience for the post of a lecturer of the Engg. College. Such weightage will not be admissible beyond 16 years.
(b) If he has attended two refresher courses / summer institutes or other comparable continuing education programmes approved by the AICTE after placement in the senior scale and
(c) If he has, to his credit, consistently "good" performance appraisal reports."
[9] Thus from the Government Resolution dated 18.08.1989 it is clear that by way of said resolution, Government has revised pay scales of teachers working in the Engineering colleges. As per clause - 11, every lecturer in the senior scale will be placed in selection grade of Rs.3700 - 5700, if he completes 8 years of service in the senior scale and/ or he has 8 years service in Engineering College and has 'total service' not less than 16 years. What is 'total service' is also explained. Thus, from the aforesaid clause, it is clear that there is no requirement of possessing Ph.D. degree for getting selection grade of Rs.3700 - 5700 even for lecturers.
[10] Thereafter, aforesaid Government Resolution dated 18.08.1989 has been amended by Government Resolution dated 25.10.1989 and thereby, scheme of revised pay scales of Physical Instructors as mentioned in Annexure - V has been introduced. In clause 9 of the amended Government Resolution dated 25.10.1989, it has been provided that for getting selection grade of Rs.3700 - 5700, Page 10 of 14 HC-NIC Page 10 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT every instructor of Physical education has to obtain Ph.D. degree or equivalent published work.
[11] Once again by Government Resolution dated 24.12.1991, Corrigendum was issued to Government Resolution dated 18.08.1989, wherein it has been provided that for getting selection grade, Ph.D. degree is not insisted for the lecturers.
[12] Thus from the aforesaid various Government Resolutions, it is revealed that requirement of possessing Ph.D. degree for getting selection grade would be applicable to employees who are appointed only after 01.01.1986. It is further clear that option was given to the existing employees to come over to the revised pay scale with effect from 01.01.1986 as per Government Resolution dated 18.08.1989. Thus, Government Resolution dated 18.08.1989 was meant to cover all employees recruited before or after 01.01.1986. But the only distinction being in case of those appointed after 01.01.1986, coverage would be compulsory. For those appointed before 01.01.1986, it would be optional and such option would be deemed to have been exercised by default. By way of Mehrotra Commission, pay scale of various teaching staff in various Government and aided colleges came to be revised. It also includes Engineering, Ayurvedic, Pharmacy, Agricultural, Medical and Veterinary Science Colleges.
[13] If prescription contained in paragaph No.7,8 and 10 of Annexure - V of Government Resolution dated 18.08.1989 are read in continuation with paragraph No.11 of the Appendix to the said resolution, Physical Instructors would also be entitled to selection grade of Rs.3700 - 5700 if they fulfill the criteria / condition contained Page 11 of 14 HC-NIC Page 11 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT in paragraph no.11 which did not require possessing Ph.D. Degree. It is further required to be noted that though Government Resolution dated 25.10.1989 is in the nature of amendment, it does not in any manner supersede original Government Resolution dated 18.08.1989. There is nothing in Annexure V to the said resolution which will indicate that relaxed standards for considering the case of Physical Instructors for grant of selection grade as contained in Government Resolution dated 18.08.1989 would be done away with. It is not in dispute that requirement of possessing Ph.D. degree for grant of selection grade is not applicable to the teaching staff of Engineering colleges which would include Librarians, Professors and lecturers. There is no requirement of possessing Ph.D. degree for getting selection grade for every Physical Instructors working in different Colleges in different faculties. Thus, without aid of such stringent requirements, all other staff members of Engineering colleges would be eligible for grant of selection grade and in fact they are getting selection grade and therefore, requirement of possessing Ph.D. degree for getting selection grade for Physical Instructors working in Engineering College is discriminatory and violative of Article 14 of the Constitution of India.
[14] As observed herein above, Government has issued Government Resolution dated 24.12.1991 by which requirement for grant of selection grade to lecturers has been substituted by deleting requirement of possessing Ph.D. degree. Thus it is clear that Government did not insist on the additional requirement in case of other employees for granting selection grade except in case of Physical Instructors.
[15] Learned AGP has placed reliance on the decision of the Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT Hon'ble Supreme Court in the case of Chandhigarh Administration through the Director, Public Instructions (Colleges), Chandhigarh (supra) and more particularly, paragraph no.21 and 22 of the said decision read as under : "21. The Tribunal and High Court also committed an error in holding that the appellant could not prescribe the qualifications of Ph.D. for the post of principal merely because earlier the said educational qualification was not prescribed or insisted. The Recruitment Rules were made in consultation with UPSC, to give effect to the UGC guidelines which prescribed Ph.D. degree as the eligibility qualification for direct recruitment of Principals. In fact, even the 1976 Punjab Rules prescribed Ph.D. degree as a qualification. In several States, Ph.D. is a requirement for direct recruitment to the post of a college Principal. When the said qualification is not unrelated to the duties and functions of the post of Principal and is reasonably relevant to maintain the high standards of education, there is absolutely no reason to interfere with the provision of the said requirement as an eligibility requirement.
22. It is now well settled that it is for the rulemaking authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules. [See J. Rangaswamy v. Government of Andhra Pradesh and P.U. Joshi v. Accountant General]. In the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable."
[16] There is no dispute with regard to aforesaid proposition Page 13 of 14 HC-NIC Page 13 of 14 Created On Wed Feb 08 03:00:22 IST 2017 C/LPA/1380/2016 CAV JUDGMENT laid down by Hon'ble Supreme Court. However, as observed herein above, insistence of possessing Ph.D. degree only for Physical Instructors working in Engineering college for grant of selection grade and not insisting such requirement in other teaching staff including librarians, lecturers etc. as well as not insisting such requirement for Physical Instructors working in other colleges in different faculties, is nothing but discrimination on the part of the respondents and therefore, aforesaid decision would not render any assistance to the appellants - original respondents.
[17] In view of aforesaid discussion and in view of reasoning recorded by the learned Single Judge, we are of the view that learned Single Judge has not committed any error and therefore, present appeal being devoid of merits, is required to be dismissed. Accordingly, the appeal is dismissed. Consequently, Civil Application also stands disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Feb 08 03:00:22 IST 2017