Gujarat High Court
Rakesh H Prekash & 22 vs Gujarat Agricultural University & 2 on 13 October, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8444/2002 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8444 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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RAKESH H PREKASH & 22....Petitioner(s)
Versus
GUJARAT AGRICULTURAL UNIVERSITY & 2....Respondent(s)
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Appearance:
TANNA ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 - 23
MR.P.K. JANI, ADDL. ADV. GENERAL WITH MR. SWAPNESHWAR
GAUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 2 - 3
MR ANAND G BHATT, ADVOCATE for the Respondent(s) No. 1 , 1.2 - 1.3
MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 1.1
RULE SERVED for the Respondent(s) No. 1 - 1.2 , 1.4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : / /2017
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HC-NIC Page 1 of 53 Created On Sat Oct 14 00:09:55 IST 2017
C/SCA/8444/2002 CAV JUDGMENT
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicants, serving as the Veterinary Officers/ Senior Research Assistants, with the Gujarat Agricultural University, have prayed for the following reliefs;
"(a) Be pleased to allow this writ petition.
(b) Be pleased to direct the respondent authorities to grant to the present petitioners revision of pay and all other allowances as recommended by the 5th Pay Commission and as admissible to the employees of the State Government working in the cadres equivalent to Veterinary Officers/Senior Research Assistants in the Gujarat Agricultural University.
(c ) Be pleased to direct the respondent authorities to implement the recommendations of the anomaly committee vis-a-vis the present petitioners and to pay to the present petitioners salary and all other allowances of the pay scale of Rs.8000-13500.
(c1) Be pleased to direct the respondent authorities to implement with the recommendation made by the Pay Anomaly Committee dated 10.5.2000 vis-a-vis affirming the request of the petitioners and be pleased to quash and set aside the report of the Cabinet Sub-Committee dated 24.05.2005 above the report of the Pay Anomaly Committee, declining the recommendation made by the Pay Anomaly Committee.
(c2) Be pleased to declare that report of the Cabinet Sub-Committee dated 24.5.2005 alongwith the resolution passed by the respondent No.3 dated 23.11.2011 are contra to the principles of natural justice, perplexing & bad in law."
(d) Grant exemplary cost of this petition.
(e) Grant any other and further relief which may be Page 2 of 53 HC-NIC Page 2 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT deemed fit in the interest of justice and equity."
2. The writ applicants herein seek to challenge the action of the respondent-authorities of not granting the benefits of the recommendations of the 5th Pay Commission though such benefits have been extended to all the equivalent officers working with the State Government. It is the case of the writ applicants that, initially, the pay scale in the cadre of Veterinary Officers/Senior Research Assistants was Rs.1640- 2900, and vide the Revision of Pay Rules, 1987, the pay scale came to be revised to Rs.2000-3500 with effect from 01.01.1986. It is their case that while the employees of the State Government, who are working in the cadre equivalent to the cadre of the Veterinary Officers/Senior Research Assistants, have been granted the benefits of the revision of pay as directed by the 5th Pay Commission, the petitioners are being denied the same from 01.01.1986 only on the ground that the revision of pay, according to the Revision of Pay Rules, 1987, from 1640-2900 to 2000-3500 had not been preferred by the Government and, therefore, the petitioners are not entitled.
3. It is pointed out that during the pendency of this petition, the petitioners were served with the report of the Pay Anomaly Committee along with the report of the Cabinet Sub- Committee. The Pay Anomaly Committee, in its report, considered the issue, which is the subject matter of this petition and recommended the following;
"The pay scales of these cadre from 1/1/1986 was Rs. 1640-2900 but instead of that representation was made by various associations working under Gujarat Page 3 of 53 HC-NIC Page 3 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Agricultural University to Rs. 2000-3500. The qualifications for direct recruitment are Bachelor of Veterinary Science and Animal Husbandry. For this cadre promotional post is Assistant Professor (Rs. 2200-4000). Earlier, this cadre as well as cadre of Veterinary officers had same pay scale of Rs. 1640-2900. However, by 1991 order, w.e.f 1/1/1986 the pay scale of Veterinary Officer was made Rs. 2000-3500. It was therefore represented that pay equality was breached from 1/1/1986. Additionally it was represented that the Govt. for recruitment had insisted on Bachelor of Veterinary Science & Animal Husbandry and even then w.e.f 1/1/1986 the pay scale was not made Rs. 2000-3500 and therefore question of anomaly was raised The Committee considered this aspect and found substance in both the points raised above, With a view to remove anomaly pay scale from 1/1/1986 should be Rs. 2000- 3500 and accordingly from 1/1/1 986 it was recommended to pay them appropriate pay scales as compared to Rs.2000- 3500. The Committee has recommended about the Veterinary Officer of Animal Husbandry Department that Veterinary Officers should be given pay scale of Rs.8000- 13500. Accordingly here also to the Veterinary Officer/Senior Research Assistants and other equivalent cadres should be paid from 1/1/1996 Rs. 8000-13500."
4. Relying on the aforesaid recommendation of the Pay Anomaly Committee, it is submitted that even the feeder post and the promotional post of the Veterinary Officers/Senior Research Assistants and Assistant Professor are identical and their pay scales earlier also were identical. It is pointed out that their educational qualification and recruitment rules are also identical. The Pay Anomaly Committee accepted and recommended the pay scale of Rs.8000-13500 to the Veterinary Officers/Senior Research Assistants at par with the equivalent employees working with the State Government with effect from 01.01.1986.
5. The petitioners have further pointed out that the Cabinet Page 4 of 53 HC-NIC Page 4 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Sub-Committee, constituted for the purpose of looking into the recommendations of the Pay Anomaly Committee, has declined to act according to the recommendations, observing as under;
"According to principle decided by Sub Committee of Cabinet this recommendation cannot be accepted. One cannot compare cadre of Govt. with institutions which receive grant. Additionally those institutions which receive grants, their recruitment rules, recruitment process, field of operation, area of operation, duties and responsibilities etc. is not comparable and therefore this recommendation cannot be accepted."
6. It is submitted that the decision of the Cabinet Sub- Committee is vague and the Government ought to have accepted the recommendation of the Pay Anomaly Committee. According to the learned counsel appearing for the applicants, the Cabinet Sub-Committee thought fit to brush aside the recommendation of the Pay Anomaly Committee only on the ground that the employees of the Universities/Institutions, which receives grant, cannot be compared with the cadre of the State Government.
7. The learned senior counsel appearing for the applicants placed reliance on a decision of this Court in the case of Bipinbhai N. Kapadia vs. Gujarat Agricultural University, Special Civil Application No.6131 of 1995, decided on 2nd September, 2002. In the said case, a learned Single Judge of this Court considered almost an identical issue and held as under;
"4. Having carefully considered the entire record of this petition and also the rival submissions, it clearly appears Page 5 of 53 HC-NIC Page 5 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT that the post of DPP in the year 1982 was upgraded and from pay-scale of Rs.1100-1600 it was placed in the pay- scale of Rs.1600-2000. By virtue of this decision the petitioner was consequently placed in the pay-scale of Rs.1600-200 instead of Rs.1100-1600. In the upper pay- scale he discharged his duties right from 1982 till he retired in November 1992. At no point of time respondent no. 1 or respondent no. 2 ever objected to the petitioner's placement in the pay-scale of Rs.1600-2000. On the contrary, when the pay-scale of Rs.1600-2000 came to be revised to Rs.3700-5000, the case of the petitioner was considered and for computation of his retiral benefits he was placed in that pay-scale as in the opinion of the Vice Chancellor respondent no. 1 was competent to take such decision and it was not required to have any approval from the State Government. Even respondent no. 2 had expressed his opinion in favour of the petitioner which was also taken into consideration by the Vice Chancellor i.e. respondent no. 3 while taking the aforesaid decision. There was no reason for respondent no. 2 to bent upon and say that since the State Government had approved the revision of pay-scale of Rs.110-1600, the petitioner could not have been placed in the pay-scale of Rs.1600-2000 and later on in the pay- scale of Rs.3700-5000. One fails to understand why all of a sudden such a change was required to be effected. When the petitioner was allowed to work for three and half years in that pay-scale and also upon retirement when he had become entitled to receive retiral benefits in accordance with the pay-scale of Rs.3700-5000, a decision to the detriment of the interest of petitioner was taken and that too without affording any opportunity of hearing to the petitioner. The record clearly shows that respondent no. 1 and its Board of Management were fully aware of the pay-scales prescribed for the post of DPP. They were also fully aware of the fact that in the year 1982 a decision was taken to upgrade the post of DPP and to make it equivalent to the post of Superintending Engineer. Again when the question of disturbing the pay- scale of petitioner arose, respondents nos. 1 and 2 took the decision in favour of the petitioner and did not reduce the pay-scale. Thus, the petitioner was allowed to work in the pay-scale of Rs.1600-2000 right from the year 1982 coupled with the fact that with the revision of the said scale the petitioner was placed in the upper scale of Rs.3700-5000 with effect from 1st January, 1986, as can Page 6 of 53 HC-NIC Page 6 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT be seen from the order dated 18-20th August, 1993. The said order even state that the next date of increment would be 1st January, 1987. It is a letter by the Comptroller of respondent no. 1. In the said order it was also directed that the arrears would be paid to the petitioner as follows :-
i. Arrears from 1/1/1986 to 31/12/1986 shall be credited to the G.P. Fund account.
ii. Arrears from 1/1/1987 to 31/3/1987 50% amount shall be credited to G.P. Fund account and 50% shall be paid in cash.
iii. Arrears from 1/4/1987 shall be paid in cash.
iv. Amount of I.R. paid from 1/4/1982 to 31/5/1983 should be adjusted against the amount of revised I.R. to be paid from 1/5/1983 to 31/12/1985 as per G.R. cited at Sr.No. 1 above.
It was also directed by the Comptroller that necessary entry of revision of pay-scale and fixation should be made in the service book of the petitioner. This was done in view of Annexure-I to the said order, which is a resolution of the Finance Department dated 1st June, HC- NIC Page 6 of 13 Created On Wed Sep 27 14:07:43 IST 2017 1987. It is a settlement of pay fixation under the Gujarat Civil Services (Revision of Pay) Rules, 1987. It relates to the petitioner, as can be seen from item no.2 i.e. name of Government employee : Shri B.N. Kapadia. At serial no. 5 against existing scale of pay : Rs.1600-60-2000 is shown. At serial no. 13 against corresponding revised scale under the GSC(ROP) Rules, 1987 under which pay is to be fixed : Rs.3700-125-4700- 150-5000 is shown. So far initial pay fixed in revised scale at serial no. 14 : Rs.4450-00 is shown. At serial no. 15 date of next increment indicates i.e. 1st January, 1988. Thus, it clearly appears that the petitioner who was working in the pay-scale of Rs.1600-2000 was placed in the upper revised pay-scale of Rs.3700-5000 with effect from 1st January, 1986. The petitioner admittedly for almost eleven and half years worked under the scale of Rs.1600-2000 which was later on upwardly revised to Rs.3700-5000. There was, therefore, ample time for the respondents to amend their error if there was any during this long period. They could not have waited for two Page 7 of 53 HC-NIC Page 7 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT years even after the retirement of the petitioner. The petitioner is sought to be placed in lower scale vide office order dated 1st August, 1994, which is almost two years after the date of retirement of the petitioner i.e. 30th November, 1992. The respondents at such a belated stage cannot be permitted to take a decision which causes considerable monetary loss to the petitioner. Not only that but when the petitioner, after all due scrutiny at different levels, was placed in the pay-scale of Rs.1600-
2000 and correspondingly upward revision of Rs.3700- 5000, it now does not lie in the mouth of respondents to say that no such scale had existed at the time when the second Pay Commission considered the revision of various pay-scales. It also does not lie in the mouth of the State Government to say now that since it had not approved the scale of Rs.1600-2000 and the corresponding upward revision of Rs.3700-5000, the petitioner should not be allowed to continue in the same or the retiral benefits should be computed on the basis of pay-scale of Ers.1100-1600.
5. This Court [Coram : M.R. Calla, J.] in the decision rendered in Special Civil Application No. 4410 of 1992 dated 17th July, 1995 has held as under :-
"I find that the petitioner's pay, etc. had been fixed in the various pay scales time and again as per the GCS (Revision of Pay) Rules, 1969, and the GCS (Revision of Pay) Rules, 1975 and he has been paid accordingly and the entries have also been signed by the Auditor and the Assistant HC-NIC Page 7 of 13 Created On Wed Sep 27 14:07:43 IST 2017 Examiner of Local Audit Fund. At no point of time, objection was raised or audit objection was conveyed to the petitioner until he applied for finalisation of his pension in April, 1990, while he was to retire in succeeding year of 1991 and it was only at this stage that in the month of October, 1990, a show cause notice was issued when he was on the verge of retirement and the audit objections were sent to him to which he appropriately filed the reply and even thereafter, no order was passed against him till he was in service. The petitioner was allowed to retire in April 1991 and thereafter, in October 1991 impugned order Annexure-C was passed against him. It will, therefore, not at all be appropriate and just to order any recovery from him against the fixation which had been Page 8 of 53 HC-NIC Page 8 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT accorded to him right in the year 1970 and after the period of nearly 20 years, no such recovery can be allowed to be made. ... "
Of-course as can be seen from the contents of the aforesaid quotation, question in that petition was with regard to recovery of the amount from the petitioner of that case on the ground that he was wrongly placed in the upper pay-scale and the excess amount paid to him by way of salary based on the upper pay-scale was required to be recovered. The petitioner of that case had put in substantially long service in that scale and it was only at the time he requested for preparation of his pension papers when he was about to reach the age of superannuation, the Government had raised objection and had sought recovery of the amount from him. This Court did not permit such recovery solely on the ground that when the petitioner had served in the upper pay- scale for sufficiently long period and during such period neither the Audit Department of the State Government found any fault with the placement of the petitioner of that case in upper pay-scale nor did the Government make any attempt to correct its error, it was not now permissible for the Government to place him in a lower pay-scale and to recover the amount which according to the Government was paid in excess due to wrong placement of the petitioner in upper pay-scale. If facts of that case and the present case are compared, there is substantial similarity between the two. In the present case also the petitioner was allowed to work in the pay- scale of Rs. 1600-2000 right from the year 1982 till he retired in the month of November 1993. During this period neither the University nor the State Government ever raised any objection with regard to the pay-scale made admissible to HC-NIC Page 8 of 13 Created On Wed Sep 27 14:07:43 IST 2017 the petitioner. In fact, as stated earlier, the post of DPP was upgraded and it was brought at par with the Superintending Engineer of the P.W.D. and the scale of Rs.1100-1600 was revised and the petitioner was given the scale of Rs.1600-2000. If that be so and coupled with the fact that subsequently the revised upper scale corresponding to Rs.1600-2000 i.e. Rs.3700-5000 was given to the petitioner with effect from 1st January, 1986, in the year 1994 it was not permissible for the respondents to place the petitioner in a lower pay-scale Page 9 of 53 HC-NIC Page 9 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT and to compute all the retiral benefits on the basis of the lower pay-scale i.e. of Rs.3000-4500. This is again cannot be permitted because respondent University itself has taken a view that it is authorized to fix the pay-scale of its employees for which approval of the State Government was not at all needed. In that view of the matter, neither respondent no. 3 nor respondent no. 4 has any business to issue order to the detriment of the petitioner and that too without affording any opportunity of hearing to him. The said order, therefore, is required to be quashed and set aside.
6. The next question that may arise for my consideration is whether the petitioner is entitled to receive interest on account of the delayed payment of the amount which the petitioner is entitled to receive in the circumstances of the case. Mr. K.D. Gandhi, learned counsel for the petitioner has placed reliance on several decisions of the Apex Court as well as this Court.
6.1. The first decision of the Apex Court relied on by the learned counsel for the petitioner is rendered in the case of Dr. Uma Agrawal v/s. State of U.P. reported in AIR 1999 S.C. at page 1212. In that decision the Apex Court has observed as under :-
"5. We have referred in sufficient detail to the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the rules/instructions are follows strictly much of the litigation can be avoided and retired Government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the Government servant. Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired Government servant claims interest for delayed payment, the Court can certainly keep in mind the time schedule prescribed Page 10 of 53 HC-NIC Page 10 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT in the rules/instructions apart from other relevant factors applicable to each case."
6. The case before us is a clear example of departmental delay which is not excusable. The petitioner retired on 30/4/1993 and it was only after 12/2/1996 when an interim order was passed in this writ petition that the respondents woke up and started work by sending a special messenger to various places where the petitioner had worked. Such an exercise should have started at least in 1991, two years before retirement. The amounts due to the petitioner were computed and the payments were made only during 1997-98. The petitioner was a cancer patient and was indeed put to great hardship. Even assuming that some letters were sent to the petitioner after her retirement on 30/3/1993 seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the department inasmuch as the rules and instructions require these actions to be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner's retirement."
It ultimately quantified the interest payable to the petitioner of that case at Rs.1 lac and directed it to be paid within two months.
6.2. The another decision cited by Mr. Gandhi is rendered in the case of Gorakhpur University v/s. Dr. Shitla Prasad Nagendra reported in AIR 2001 S.C.p. 2433. In that case the appellant University withheld the pensionary benefits and gratuity provident fund, etc. of its employee on the ground that she had not vacated the official quarter even after the retirement. The Apex Court dismissed the appeal on the ground that the payment of interest at the rate of 18% granted in that case was just and proper.
6.3. In the case of R. Kapur v. Director of Inspection reported in (1994) 6 S.C.C. 589 the Apex Court has held that right of a retired employee to gratuity was not dependent on vacating the Government accommodation. In that case the gratuity amount of the employee was withheld and not paid to him on the ground that he had not vacated the Government accommodation. Considering the facts of that case, the Apex Court Page 11 of 53 HC-NIC Page 11 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT thought it fit to award higher interest than the interest awarded by the Tribunal. The Apex Court instead of 10% interest raised to 18% 6.4. Mr. Gandhi has also placed reliance on the decision of this Court rendered in the case of Jayaben J. Thakore v. State of Gujarat reported in 1999 (1) G.L.H. page 699. In that case the learned Single Judge of this Court [Coram :
R. Balia, J.] considering the fact that there was delay in disbursement of the pensionary benefits and gratuity, etc. and held that in case of culpable delay in settlement and disbursement of the pensionary benefits, payment of interest should be granted. In para. 9 of the said judgment the learned Judge has observed as under :-
"9. The principle aforesaid governs the present case. The respondents having come to the conclusion that certain amount of gratuity was payable to the petitioner withholding of that amount on the ground of pendency of the petition between the Government and the Gujarat Law Society, the immediate employer of the petitioner, was on the face of it unreasonable and unwarranted and further even awaiting till direction of the Court to release that payment after 11 years of retirement, makes it a case of culpable delay in settlement and disbursement of admitted sum of gratuity and is eminently a fit case for grant of interest at the market rate. Since from 1986 to 1998, the market rate has been fluctuating, I deem it fit to grant interest at the rate of 15% from the date of three months after the date of retirement till actual date of payment which has been made during the pendency of this petition. Rule made absolute with no order as to costs."
6.5. In the case of Saijpur Bogha Nagar Palika Karmachari Mandal v/s. Ahmedabad Municipal Corporation reported in 1991 (2) G.L.H. p. 186 the Division Bench of this Court thought it fit to award interest in the case of delayed payment of wages. The Court has observed "47. The amount of wages/salary is nothing but the price of labour sold or the service rendered. If the amount of interest can be claimed and also be upheld on equitable grounds in respect of claims of amount made by a building contractor, property holder and even in respect of a manufacturer who has never suffered any injury or Page 12 of 53 HC-NIC Page 12 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT loss, we fail to understand how on any equitable or just ground the claim of interest that may be made by the workmen on the delayed payment of wages can be denied by the courts. If such legitimate claim of interest is denied, it may be that the court may be exposed to the charge that the courts are administering injustice in the name of upholding the law rather than administering justice according to law. In our opinion, neither in law nor in equity the claim of interest by the workmen can be denied.
48. In view of the aforesaid settled legal position and in view of the implied term of contract which should be read by necessary implication in all contracts of employment, the employer should make payment of interest on the delayed payment of wages till the actual payment is made. It may again be noted that even if there is an express term of contract specifying that the amount of interest would not be paid on the delayed payment of wages, such term of contract would be unlawful. It would be on the face of it unjust and unfair and therefore unlawful."
7. Considering the aforesaid decisions it becomes very clear that if the wages are not paid in time or the benefits either the retiral or the benefits available to the employee during the tenure are not paid in time without there being any lawful excuse, interest should be awarded on such delayed payment. Considering the facts of this case, it clearly appears that the respondents did not have ay lawful excuse or justifying reasons for denying the petitioner the benefit of revised upper pay- scale of Rs.3700-5000 and after the retirement it ought to have paid the pensionary benefits on the basis of the said pay-scale. However, it appears that the last drawn salary by the petitioner was Rs.1920/- in the scale of Rs.1600-2000. If that be so, the petitioner would be entitled to receive all the arrears on account of short payment of salary and also the retiral benefits which have to be computed on the basis of scale of Rs.3700- 5000 which are not made available to the petitioner.
8. In light of the aforesaid discussion, the impugned order at Annexure-I is quashed and set aside. The respondents are directed to pay all the arrears to the petitioner on account of the salary as well as the retiral Page 13 of 53 HC-NIC Page 13 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT benefits together with interest at the rate of 12% from 1st January, 1986 till the payment. The amount payable to the petitioner has to be worked out on the basis that he was placed in the pay-scale of Rs.3700-5000 with effect from 1st January, 1986. The retiral benefit which is to be given to the petitioner is also to be worked out on the said basis. Whatever amount which petitioner has received by now will have to be adjusted while computing the arrears. The respondents are directed to carry out this exercise and make payment thereof to the petitioner on or before 30th January, 2003. With aforesaid directions, the petition stands allowed. The respondents are directed to pay cost of this petition to the petitioner. Rule made absolute."
8. It is pointed out that the aforesaid decision of the learned Single Judge was questioned before the Division Bench in the Letters Patent Appeal No.194 of 2003 by the State of Gujarat. The Division Bench, while dismissing the appeal and affirming the view of the learned Single Judge, held as under;
"Giving consideration to these submissions advanced by the parties, the Single Judge held that the post of DPP was upgraded in the pay scale of Rs.1600-2000 from the pay scale of Rs.1100-1600. Accordingly, the respondent was placed in the pay scale of Rs.1600-2000. He discharged the duties in this pay scale from 1982 till 1992. None of the appellants had objected to the placement of respondent in the pay scale of Rs.1600- 2000, rather, the pay scale was revised to Rs.3700-5000 and retiral benefits calculated on that basis. All the authorities had similar approach with respect to the matter, but for the objections raised by the Local Fund after the retirement of the original petitioner. The Board of Management knew very well the pay scale of DPP.
It upgraded this post to the level of Superintending Engineer. Having done so, the pay scale of the said post was naturally available to the respondent, So, it was sanctioned by the competent authority and the respondent availed it not only during the service but afterwards by way of pension. Therefore, examining the Page 14 of 53 HC-NIC Page 14 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT matter with this back ground and totality of circumstances, order of August 3, 1994 has been quashed. The respondent has been held entitled to the reliefs contained in the impugned judgment.
Through this appeal, the State has challenged this judgment reiterating that on objection being raised by the Local Fund Office, the University decided to withdraw the pay scale. For the first time, the Government Resolution dated 14th September, 1976 has been placed before us in support of the contention. After having considered the submissions, we find that the GAU is financed by the State, Government of India, Indian Council of Agricultural Research and other Agencies. The State Government grant with regard to the salary, not less than the estimated net expenditure on pay and allowances. The Government may also extend financial assistance with respect to scheme(s) and any scheme initiated by the University without sanction by the Government is met from its own sources or taken from any other agencies. No other rule or regulation is brought to our notice enabling the State Government to control the functioning of the GAU with regard to the upgradation of post and grant of pay scale to the post
(s), more so, post in question. Even otherwise, we find that before resorting to the action, the GAU and the respondent deserved hearing which has not been allowed. Therefore, giving consideration to the whole matter, we hold that the post of DPP was rightly upgraded by the GAU to the level of Superintending Engineer. The respondent was adjusted against this post, obviously entitled to the pay scale of Superintending Engineer admissible at that stage and revised from time to time. The State has no competence to nullify the order since the approval of the State Government was not necessary.
Consequently, we are in agreement with the order of the Single Judge and the appeal is dismissed leaving the parties to bear their own costs. The University to implement the judgment of the Single Judge within one month.
In view of the above order, Civil Application No. 1322 of 2003 shall also stand disposed of with no order as to costs."
Page 15 of 53HC-NIC Page 15 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT
9. The learned counsel invited the attention of the court to one another decision rendered by a learned Single Judge of this Court in the case of V.A. Vadukar vs. State of Gujarat, Special Civil Application No.9467 of 1998, decided on 25th August, 2004. The learned Single Judge, held as under;
"1.1 The petitioner, by way of this petition, has sought for a direction to the respondents-authorities to implement the revision of pay prescribed pursuant to the recommendations of the 5th Pay Commission and to place the petitioners in the requisite payscale granting all consequential benefits.
2.1 According to the petitioners, they were working with the respondent-Gujarat Agricultural University which is amenable to writ jurisdiction of this Court in view of the fact that the respondent-University is an autonomous body getting 100% grant from the State Government, and hence, the respondent-authorites are bound by the Act and the Rules and they cannot discriminate the employees without any reasons.
2.2 It is the case of the petitioners that they had applied for the post of Executive Engineer in the payscale of Rs.1100-1600 pursuant to an advertisement published by the respondent-authorities on 10th October, 1993, called for an interview, selected and appointed to the said post in the year 1984 in the payscale of Rs.1100-1600 after following the due procedure as prescribed under the provisions of Statute 41 of the Act. Later on, while implementing the 4th Pay Commission, the petitioners had been fixed in the payscale of Rs.3000-4500 whereas while effecting pay revisions in 1998 pursuant to the recommendations of the 5th Pay Commission, the petitioners pay was not revised and the petitioners were deprived of his right to be placed in the payscale of Rs.10,000-15,200 on the ground that there is no approval from the State Government though the Executive Engineers working in other departments of the State Government have already been granted such revision of pay, and hence, the present petition.
3.1 The respondents have filed their reply controverting Page 16 of 53 HC-NIC Page 16 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT the averments made in the petition. It is the say of the respondents that the petitioners are not entitled to the benefits claimed by them as the respondent-University is not competent enough to grant pay revision without the previous sanction of the Government. According to the respondent-University the permission to grant pay revision though was granted to the University vide communication dated 9th April, 1980 the same came to be abrogated by a subsequent communication dated 9th May, 2000.
4.1 Now, in the present case, the petitioners have claimed the benefits prior to the year 2000, and therefore, the communication dated 9th April, 1980 will HC-NIC Page 2 of 4 Created On Wed Sep 27 14:27:57 IST 2017 be applicable to the case of the petitioners and the stand taken by the respondents that for want of approval from the State Government the petitioners could not be granted the said benefit cannot be accepted.
4.2 Apart from that, Mr. Shastri, learned Counsel for the petitioners has drawm my attention to the decision of this Court dated 02-03/09/2003 ( Coram: Akshay H.Mehta, J.) in Special Civil Application no.6131/1995, where in a matter similar to the present one, this Honourable Court has directed the respondents to pay all the arrears to the petitioner on account of the salary as well as the retiral benefits together with interest. The said judgment was carried in appeal by the State Government being LPA no.194/2003 which came to be dismissed on 17th March, 2004.
4.2 Mr. Shastri has also relied on the decision dated 28- 11-2000 rendered by the Honourable the Apex Court in the case of STATE OF PUNJAB AND ANOTHER V. SARDARI LAL AND OTHERS reported in (2003) 10 SUPREME COURT CASES 253 wherein at paragraphs 3 and 4 of the judgment, it has been held that:
"The provisions of Section 23 and 25 of the Guru Nanak Dev University Amritsar Act cannot be construed to have conferred the power on the State Government in the garb of controlling the funds which the State Government grants for the running of the University, to have a control over the internal administration of the University. The University is an autonomous body, and therefore, the Page 17 of 53 HC-NIC Page 17 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT State Government will not be entitled to interfere with the internal administration of the University notwithstanding the fact that the State Government is the funding body until and unless the University Statutes provide for the same or there is any Act of legislation conferring that power on the State Government. Even for the Haryana and Punjab Agricultural University, the power conferred under Section 10 of the Haryana and Punjab Agricultural Universities Act, on a plain reading cannot be held to be conferring power on the State Government to take any decision in the internal administration of the University which the Statute itself does not provide."
5.1 Taking into consideration the observations of the learned Single Judge in SCA no.6131 of 1995, more particularly, at paras 5 and 6, as also, keeping in mind the observations made by the Apex Court cited above, I am of the view that the petitioners are entitled to the benefit of pay revision as prescribed by the 5th Pay Commission as claimed by him and he is required to be placed in the corresponding payscale of Rs.10,000- 15,2000.
6.1 In view of the foregoing discussion, the petition is allowed. The respondents are directed to pay all the arrears to the petitioners on account of revised pay as well as the retiral benefits together with interest at the rate of 9% from 1st January, 1996 till the payment treating the petitioners as placed in the payscale of Rs.10,000-15,200 with effect from 1st January, 1996. The payment as directed be paid to the petitioners within four months from today. Rule is made absolute accordingly."
10. Mr. P.K. Jani, the learned Additional Advocate General appearing for the State of Gujarat has vehemently opposed this writ application. According to Mr. Jani, no case worth the name could be said to have been made out by the writ applicants for the grant of the relief prayed for in this writ application. Mr. Jani would submit that although the pay commission is considered to be an expert body, yet the State, in its wisdom and in furtherance of the valid policy decision, Page 18 of 53 HC-NIC Page 18 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT may or may not accept its recommendations. According to Mr. Jani, assuming for the moment without admitting that the writ applicants are performing the very same duties and the functions that of the Veterinary Officers attached with the State Government, yet a valid classification can be made on the basis of the various other considerations like the mode of recruitment, functions, duties etc. Mr. Jani has placed before this Court, for convenience, a comparative statement of qualifications, functions and the duties of the Veterinary Officers in the agricultural University and State.
Sr. Particulars Veterinary Officers Veterinary Officers (Class II) No. (Class III) of Agricultural of the State Government University 1 Educational 100% Direct 1, The rules may be called Requirement Recruitment As per the veterinary officer, statute 5.116 Recruitment Rules, 1979 4(a) The candidate 2. Appointment to the post of should ' have passed veterinary Officer, Class -II the Second Class shall be made by direct B.V.Sc. and AH. degree selection or its equivalent degree
3.To be eligible for in Second Class.
appointment by direct
b) The Candidate selection to the post
should be the Member mentioned in rule a candidate of State Veterinary must-
Council OR Veterinary
(a) be not more than 28 Council of India.
years of age
c) Passed the
(b) possess a degree in
Examination of CCC of
Veterinary Science of any
DOEACC or of the
statutery University in India
equivalent level
or of any recognised
examination
institution abroad provided
determined by the
that the upper age limit may
State Government from
be relaxed in favour of a
time to time, If not,
candidate possession
should pass the
exceptionally good
examination within the
qualification.
probation period.
(d) Age: Not more than
28 years of age
2 Recruitment (A) Direct Recruitment Direct recruitment through
Process Through Agricultural Gujarat Public Service
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Universities Statute No. Commission 41.1 (before 20.6.2013) (1) GPSC advertised the post
8. Method of as per lndent received from recruitment of Grade Department of Animal 'III' employees : Husbandry, The following procedure (2) GPSC invite online shall be adopted for application from candidates appointment of Grade and after receiving the same III employees applications are scrutinized as per rules and regulations
(a) The Director of and then eligible candidates Campus for employees call for the personal in the Colleges and interview.
offices in the zone and Registrar for employees (3) If GPSC received more in the Vice-Chancellor's applications and then if Office shall have the required, It's takes primary posts advertised with test and according to marks such qualifications as secured from primary test, may be fixed and/or Application of candidates are invite suggestions and scrutinized and as per merits recommendations for eligible candidates called for such personal interview-
persons/institutions / agencies as he may deem proper.
(b) After having
advertised the posts
and received the
applications and/or
after having obtained
the recommendation
from appropriate
persons, institutions or
agencies the Director of
Campus Or the
Registrar as the case
may refer them to the
Selection Committee
Concerned.
(d) The Chairman of the
committee shall cause
all applications and/or
Suggestions and
recommendations
scruitinised and prepare
a list of Candidates who
Shall be either called for
interview or Considered
in absentia. l
(B) At present as per
Statute No.116
(Recruitment of
non~teaching
employees) Rules.
2011 from 20.6.2013
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Rule-13.0 Methods of
recruitment
(ii) By direct
recruitment through
advertisement or by
calling in the list of the
candidates from the
Employment Exchange
or by calling in the list
of the Candidates from
the Social Welfare
Officer Concerned or
any other similar
organisation in
accordance with the
directives issued by the
State Government from
time to time in this
regard and marking
selections
therefrom. Provided
further that the initial
appointment to Class III
posts shall be made on
fixed pay basis for a
period of five years on
such terms and
conditions as laid down
by the Government in
General Administration
Department vide
Government Resolution
No. CRR- 11-2008-
433717-6-5, Dated
11th May, 2010 as may
be amended from time
to time.
Rule-18.0 Written
examination/ screening
test :
The Selection
Committee/ Registrar
may if it/he thinks
expedient, direct that
written examination or
screening test be held
either by the University
or by a suitable agency
appointed for the
purpose to assess the
suitability of the
candidates for Direct
recruitment
3 Recruitment Rules (A) Gujarat Agricultural (1) No. RCT-1176/51016-R.
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University Statute Agriculture, Forest and
No.41.1, before Cooperation Department,
20.6.2013 Sachivalaya, Gandhinagar,
No.GKH/1068/781/RCT/51
4(a) The candidate
016-R. Dated the 1st
should have passed the
December, 1978.
Second Class B.V.Sc.
and AH. degree or its (2)No.GHKH/37/RCT/1194/30 equivalent degree in 73-P-2 , Agriculture and Second Class. Cooperation Department, Sachivalaya, Gandhinagar,
(b) The Candidate Dated the 19th July, 2006 should be the Member of State Veterinary (3)No.GHKH/16/2013/RCT/11 Council OR Veterinary O8/2879/P-24, Agriculture Council of India. and Cooperation Department, Sachivalaya, Gandhinagar,
(c) Age : Not more than Dated the 28th FEB,2013 28 years of age [4)No.GHKH/27/2015/AHS/11 (B)At present as per 2014/266/P-2, Agriculture and Statute No.116 Cooperation Department, (Recruitment of non-
Sachivalaya,
teaching employees)
Rules, 2011 from Gandhinagar, Dated the 18th
20.6.2013 FEB. 2015.
100% Direct
Recruitment
4(a) The candidate
should have passed the
Second Class B.V.Sc.
and AH. degree or its
equivalent degree in
Second Class.
(b) The Candidate
should be the Member
of State Veterinary
Council OR Veterinary
Council of India.
(c) Passed the
Examination of CCC of
DOEACC or of the
equivalent level
examination
determined by the
State Government from
time to time. If not,
should pass the
examination within the
probation period.
(d) Age : 18 to 28 years
4 Work Place University area, Any place in Gujarat state as
especially in the main per appointment order campus.
Page 22 of 53HC-NIC Page 22 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT 5 Functions and Functions and Duties in Veterinary Officer post is Duties : general, there is no sanctioned in various specific Job Chart of departments, Veterinary Veterinary Officers may Officer (Panchayat), Poultry be decided as per Unit and Mobile Unit, District nature of works Veterinary Officer and other described in the V.O. scheme / project (A) Function & separately i.e. Responsibilities of Veterinary Education, Research Officer of District and Extension Panchayat.
Education. In university system, when 1. Responsible for the health Veterinary Officers of Cattle & Birds of the posted in research or surrounding are his job. education
2.Give Priority to emergency scheme/project, he will cases.
have assigned following duty and function. 3. At the time of infections disease of the cattle & Birds Suppose, VO posted in around his job area, he must research scheme i.e. take action for control of live stock research disease urgently and give project/farm vaccination of disease.
1.To supervise work of
4. Collection of samples of live stock inspector disease and reporting to
2.To assist a farm research office.
manager for technical
5. Awareness of different work, organize scheme of Animal Husbandry experiments and its Department.
related work
6. To accelerate Artificial}
3.To supervise farm insemination of his job area. ' records and maintenance thereof. 7.To collect information, regarding Animal products
4.To verify stock and like milk, meat wood etc. stock register.
8.To guide poultry and sheep
5.Treatment of Animals production centre.
as well as helpful to the Veterinary Scientists in 9. To guide livestock Education, Research &: Inspectors regarding Extension Functions. intensive cattle development plan and gives training
6.As a Veterinary regarding Animal treatment Doctor on Cattle & & Artificial insemination.
Sheep - Goat farm for Animal Health 10. Prepare post mortem (Deworming, Vaccine & report & fitness certificate treatments) and and gives to the cattle keeper breeding. as per their demand.
7.He has to work under 11. To obey the orders and officer in charge of live works as per instruction stock research station. given by district veterinary officer.
8. Any other work assigned to him from 12. To implements the officer in charge from technical works give by time to time. director of joint director of Page 23 of 53 HC-NIC Page 23 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT If a Veterinary Officer is Animal Husbandry. posted in education
13. lmplementation of Animal scheme i.e. live stock Husbandry different scheme inspector training of the district & Taluka centre.
Panchayat is their job area.
1. He has to work as a (B)Function & Responsibilities junior lecturer and its of Veterinary Officer of Mobile related work.
Unit.
2. Any other work assigned to him from 1.Responsible for the health officer in charge from of Cattle & Birds of the time to time. surrounding are his job.
2.To cover of the route surrounding main centre in working days.
3.To give the treatment to the animals near panchayat House/Milk Society/as per demand of villages.
4.While visiting in route, if infections disease found, he must give urgent treatment and information to nearest Veterinary Officer.
5.Castration of unuseful cattle, Artificial insemination, Sexual Health diagnosis during the visit.
6.To prepare the monthly, Trimonthly & annual technical report timely and send to upper office.
7.Prepare post mortem report & fitness certificate and gives to the cattle keeper as per their demand.
8.To aware the cattle keeper regarding fodder .development scheme.
9. To encourage the cattle keeper regarding milk production competition, cattle exhibition.
10. To obey the instruction works given by Upper office/Animal Husbandry Department.
(C) Function & Responsibilities of Veterinary Officer of in the office of District Veterinary Page 24 of 53 HC-NIC Page 24 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Officer.
1. To prepare the monthly, Tri-monthly & annual technical report timely and send to upper office.
2. Purchase of medicines instruction/Vaccine/etc. from district office its distribution.
3. To helpful to the district Veterinary Officer for the implementation of tribal sub plan District planning boards, Animal Husbandry scheme and other scheme of Animal Husbandry Department.
4.At the time of infections disease of the cattle & Birds around his job area, he must take action for control of disease urgently and give vaccination of disease.
5.Planning, Co-Ordinating and reporting of surgical camps, Cattle exhibition camp infertility preparation camp and other breeding works organizing at the districts.
6.To helpful in Artificial insemination & breeding works and arrangement & distribution of liquid nitrogen.
7.All technical other correspondence and it need visit the different place of districts and helpful to administrative work.
8.To obey the instruction of Animal breeding officer regarding implementation to fodder development schemes.
9.Any other works given, by district Animal breeding officer / District Panchavat
10. To gives the treatment ma the different infections disease like small pox, foot and mouth and disease of poultry and reporting to the upper officer.
(D)Function & Responsibilities of Veterinary Officer .in' the office of District Veterinary Page 25 of 53 HC-NIC Page 25 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Officer.
1.To examine minimum 3000 cattles/year for the Animal sexual health control at their centre.
2.To Plan the surgical & Infertility prevention camp at their job area.
3.To maintain the instruments, medicines chemicals etc useful in Artificial insemination preciously Also prepare rolls and registers and submit to tye upper officer timely.
4.Identify the animals which artificially nseminated.
5.If required Veterinary officer has to do Artificial inseminations work at the main centre. keep record newly born animals, health care,deworming and its related medicines. In the area of listen live stock inspector, if required such type of work,veterinary officer has to guide.
6. Whether maintenance of bull"s health. its food etc is carried out preciously veterinary officer has to look into matter.
7.To encourage the cattle keeper regarding milk production competition, cattle exhibition.
8.Planning of fodder production work and.
preparation of report selection of field and distribution of improved seed for fodder and' arrangement of chaff cutter.
"9. Selection of calf rearing scheme and its related works in the job area.
10. At the time of infections disease of the cattle & Birds around his job area, he must take action for control of disease urgently and give vaccination of disease.
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11.Keep in contact with! milk co-op.society, Gram Sabha.
Pashupal Sangh etc. and arrange meetings and gives the publicity of their works.
12.To prepare monthly report of Artificiall inseminations and natural inseminations;
report,
13.Prepare a purchase note of medicines, if Instruments etc. Maintenance of store, Instruments of Artificial inseminations, chemicals, glassware through dairy extension officer for approved of planning officer.
PAY SCALE OF VETERINARY OFFICERS/SENIOR RESEARCH ASSITANT No. R.O.P. Veterinary Officer of V.O. Of the State Remarks Agri. Uni. Govt.
1 Before 1976 250-550 250-550 -
2 ROP-1976 550-900 550-900 -
3 ROP-1987 1640-2900 2000-3500 Pay scale of V.O. Of Agri. Uni. Is decreased than State Govt.
4 ROP 1996 5500-9000 6500-10500 -
5 ROP-2009 9300-34800+4400 9300-34800+4600 -
Grade Pay Grade pay
11. On behalf of the respondent No.1-University, an affidavit- in-reply has been filed, inter alia, stating as under;
"2. I say that Respondent No.1 is competent to determine the pay and allowances of all the employees as per section 23(1) of Gujarat Agricultural University act, 1969. However, I say that the Pay & Allowances of employees of Respondent No.1 has been sanctioned by the Respondent No.2 from 1.1.1973. I say that the Respondent No.2 has revised and sanctioned the pay scales of the non-teaching employees of the Respondent No.1 w.e..f. 1.1.1973, 1.1.1986 and lastly 1.1.1996. I say Page 27 of 53 HC-NIC Page 27 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT that the said pay scales are adopted by the competent authority of Respondent No.1.
3. I say that the Board of Management resolved Vide item No.105.22 to adopt pay scales of veterinary Officers & its equivalent posts notified by Respondent No.3 vide Notification No. (GN)-AOP-1091-1-M dated 20.3.1991 w.e.f. 1.1.86. I say that thus the pay scales of the Petitioners which was in pay scale of Rs.1640-2900 was revised by Respondent No.1 to Rs.2000-3500 on the line of the pay scales revised by Respondent no.3 for Veterinary Officers in state service.
4. I say that the Respondent No.1 has adopted the pay scale of Government of Gujarat in toto, now unless the respondent No. 2 approves the action of revising the pay scales of. the Petitioners from Rs.1640-2900 to Rs.2000- 3500, the Respondent No.1 can not grant pay scale of Rs.2000-3500 and its revision from 1.1.96. Under the circumstances, the Petitioner's pay scales fall under anomalous situation.
5. It is true that the Vice Chancellor of Respondent No.1 made representation to Respondent No.2 requesting to make correction in the G.R. for the pay scales revised by Respondent No.1 for its employees including the Petitioners, but the same could not be done as it has now become the issue of anomaly committee.
6. The Respondent No.3 by G.R. dated 20.5.1998 constituted a committee to examine the representation of pay anomalies and allied matters. I say that the matter to pay scales of the Petitioners was presented before the Anomaly Committee. It is learnt that the report of the said committee is pending before the Respondent No.3. I say that the action will be taken by the Respondent No.1 on final outcome on the Report of Anomaly Committee. Further I have come to know that report of Anomaly committee is given to Respondent No.2 and Respondent No.2 has formed another committee for implementation of the above report. Unless, sanction is given for implementation from above committee to Respondent No.1. The Respondent No.1 can not on his own implement above pay scales. If the above two committees give a sanction in writing to respondent No.1 we shall abide by the decision of the above mentioned Page 28 of 53 HC-NIC Page 28 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT two Committees. Under the present circumstances, the petition of the petitioner is required to be dismissed. "
12. On behalf of the respondents Nos.2 and 3, reply has been filed, duly affirmed by the Undersecretary, Agriculture & Cooperation Department, inter alia, stating as under;
"4. I say that the 5th Pay Commission benefits came to be accepted by the State Government as recommended by the Central Government and the same has been paid to the Veterinary Officer of Gujarat Agricultural University.
5. I say that in view of the Government Resolution of the Department issued in the year 1991, vide notification dated 20.03.91, the benefits are made available to the employees of the State Government Animal Husbandry Department. I say that however the said benefits were not made applicable to the Veterinary Officer, Gujarat Agriculture University in view of the Resolution passed by the Department. I say that however because of the administrative error committed by the University though benefits are not payable to the Veterinary Officer of Gujarat Agricultural University in view of the Government Resolution of 1991 as explained hereinabove, the University also has released the benefits on the same footing to the employees of Agricultural University. I say that however the benefits as such in view of Government Resolutions are not payable to the employee of Gujarat Agricultural University.
6. I say that because of inadvertence on part of the Gujarat Agricultural University pay anomaly has occurred amongst the Government Staff and the University Staff which is as under :
(i) In the year 1987, the grade of the officer of State Government Animal Husbandry Department is Rs.1640- 2900.
(ii) The revision of pay scale took place in the year 1991 and thereafter the pay scale fixed is Rs.2000-3500.
7. I say that however the Gujarat Agricultural University without obtaining the specific approval of the Page 29 of 53 HC-NIC Page 29 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT State Government in this behalf, only on the basis of approval of Board Management of Gujarat Agricultural University in violation of guidelines issued in this behalf revised the pay scale and the pay scale of Veterinary Officer of the University is increased and therefore the University employees also were enjoying the benefits of grade Rs.2000-3500. I say that after committing breach of the guidelines however in order to pursued the Government machinery at the end of Gujarat Agricultural University. Representations were filed before the Anomaly Committee and report is pending before the Cabinet-Sub-committee and it is yet not made available to public at large because it is under scrutiny by the Cabinet Sub-Committee.
I say that in view of the above true facts, prayers made in the petition are without any basis and material and the facts which are disputed by the present respondents cannot be decided in the writ jurisdiction by this Hon'ble High Court with regard to the applicability of pay scale to University Employees. I say that in order to decide the applicability of pay scale, nature of work and other factors are also required to be looked into. I say that therefore the petition is misconceived and required to be dismissed."
13. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants herein are entitled to the relief as prayed for in this writ application.
14. The Pay Anomaly Committee recommended the pay scale of Rs.2000-3500 from 01.01.1986 and revised the scale with effect from 01.01.1986. The Cabinet Sub-Committee constituted by the State Government for the purpose of looking into the recommendations of the Pay Anomaly Committee took the view that the employee of a grant-in-aid Page 30 of 53 HC-NIC Page 30 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT institute cannot be compared with an employee of the State Government. The moot question is whether the same could be termed as a valid and reasonable classification inconsonance with Article 14 of the Constitution of India.
15. In the case of M.P. Rural Agriculture Extension Officers Association vs. State of M.P. & Anr., 2004(4) SCC 646, the Hon'ble Apex Court, in paras-10,13,17,18,25 and 26 held as under;
"13. The Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-`-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India. A dying scale was provided by the State for the non- graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree holders.Page 31 of 53
HC-NIC Page 31 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT 17 The said dicta was applied by this Court in Mewa Ram Kanojia (supra), stating :
"5. While considering the question of application of principle of 'Equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality."
18. The principle was reiterated in V. Markendeya (supra), observing:
"13. In view of the above discussion we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualification, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scale of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot be applied to Page 32 of 53 HC-NIC Page 32 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similarly placed employees. The court however cannot prescribe equal scales of pay for different class of employees."
25. Yet again in Shyam Babu Verma (supra), N.P. Singh, J. speaking for a three-Judge Bench observed :
"...The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them..."
26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. "
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16. In the case of State of U.P. & Ors. vs. U.P. Sales Tax Officers Grade II Association, 2003(6) SCC 250, the Hon'ble Supreme Court, in paras-11 and 13 observed as under;
"11. There can be no denial of the legal position that decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees.
17. In the case of Asif Hameed vs. State of Jammu & Kashmir & ors., AIR 1989 SC 1899, the Supreme Court, in para-19, held as under;
"19.When a State action is challenged, the function of the court is to examine the action in accordance with Law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitu- tion and if not, the court must strike down the action. While doing so the court must remain within its self- imposed limits. The court sits in judgment on the action of a coor- dinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature of executive, provided these authorities do not transgress their constitutional limits or statutory powers. "
18. In the case of Collector of Central Excise, Page 34 of 53 HC-NIC Page 34 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Calcutta vs. Berger Paints India Ltd., AIR 1990 SC 1277, the Supreme Court, in paras-57 and 58, held as under;
"57 Judicial review is not concerned with matters of economic policy. The Court does not substitute its Judgement for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts Within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question Whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J . in Gupta Sugar Works :
"the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines Whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."
58 Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company V/s. United States of America (1933) 292 US 282-: 78 Law ed 1260, :
"The structure of a rate schedule calls in peculiar measure for the use of that enlightened Judgement which the Commission by training and experience is qualified to form ..... It is not the province of a court to absorb this function to itself... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the Page 35 of 53 HC-NIC Page 35 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT administrative body".
19. In Government of West Bengal v. Tarun Kumar Roy, (2004)1 SCC 347, a three-Judge Bench of the Supreme Court held as under :
"14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently."
The Court further opined that in a case where the employees do not hold the essential educational qualifications, they cannot claim parity in the scale of pay on the ground of equality stating :
"30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this court to the respondents on the aforementioned, ground, the same will be in contravention of the statutory rules. It is trite that this court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision."
20. In Government of West Bengal (supra), the Court, Page 36 of 53 HC-NIC Page 36 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT upon noticing a large number of decisions, observed thus :
"25. In a case of this nature, the courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case the High Court or this Court may not exercise an equitable jurisdiction under Article 226 or Article 136 of the Constitution of India, but it is another thing to say that the courts shall grant a relief to a party only on the ground that a contention which is otherwise valid would not be raised on the ground that the same was not done in earlier proceedings.
28. In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellants on their own merit, particularly, when the question as regards difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in Debdas Kumar (1991 AIR SCW 704). If the judgment of Debdas Kumar is to be followed a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar which in turn would mean that they are also holders of diploma in Engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar) (1995 AIR SCW 3116)
21. In State of Haryana v. Jasmer Singh, (1996)11 SCC 77, the Supreme Court considered the provisions of Articles 39(d), 14 and 16 of the Constitution and held that the principle of 'equal pay for equal work' is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organisation.
Page 37 of 53HC-NIC Page 37 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT There may be differences in educational or technical qualifications, which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service, which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performances can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job.
22. In State of Haryana and Anr. v. Tilak Raj and Ors., AIR 2003 SC 2658, the Supreme Court held as under :-
"11.To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with other group vis-a-vis an alleged discrimination.
12. Equal pay for equal work" is a concept which requires for its applicability complete and wholesome identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula ."
23. In Harbans Lal and Ors. v. State of Himachal Pradesh and Ors., (1989) 4 SCC 459, the Supreme Court considered a similar issue and observed that while Page 38 of 53 HC-NIC Page 38 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT determining the issue of parity in pay, large number of considerations and various dimensions of the job are required to be taken up by the courts. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter affidavits of the parties. It must be left to be evaluated and determined by expert body. The Supreme Court further held as under :
"The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced...."
24. In Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors., AIR 1989 SC 1256, the Supreme Court dealt with an issue of pay parity between Speech Therapists and Audiologists and held that merely because Speech Therapists perform similar duties and functions in other institutions, are paid higher pay-scales is no good ground to accept the petitioner's claim for equal pay. There may be difference in educational qualifications, quality and volume of work required to be performed by the hearing therapists in other institutions. The person claiming parity must sufficiently produce material before the Court to adjudicate upon such a Page 39 of 53 HC-NIC Page 39 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT complicated issue of factual determination. More so, if the employer is not the same, the principle of equal pay for equal work would not be applicable.
It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules etc. The doctrine of 'equal pay for equal work' as enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/ wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors., AIR 2006 SC 2296 : (2006 AIR SCW 3013); Union of India and Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435 : (2007 AIR SCW 7204); Union of India and Ors. v. Dineshan K.K., AIR 2008 SC 1026 : (2008 AIR SCW 591); Union of India and Ors. v. Hiranmoy Sen and Ors., (2008) 1 SCC 630 : (AIR 2007 SC (Supp) 1395 : 2007 AIR SCW 7025); Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1 : (AIR 2008 SC (Supp) 1177); Uttar Page 40 of 53 HC-NIC Page 40 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT Pradesh State Electricity Board and Anr. v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh and Ors. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635) : (2010 AIR SCW 2748).
25. The Supreme Court while deciding a similar issue in State of West Bengal and Anr. v. West Bengal Minimum Wages Inspectors Association and Ors., (2010) 5 SCC 225, held as under :
"18. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts.
19. The principle 'equal pay for equal work' is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
20. The burden to prove disparity is on the employees claiming parity." (See also State of Kerala v. B. Renjith Kumar and Ors., (2008) 12 SCC 219 :
(AIR 2009 SC (Supp) 465 : 2008 AIR SCW 4279)).
26. In Union of India and Anr. v. P.K. Roy, AIR 1968 SC 850, the Supreme Court accepted the factors laid down Page 41 of 53 HC-NIC Page 41 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956, wherein the following four factors had been held to be determinative of the issue of equivalence of posts:-
1. The nature and duties of a post;
2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
3. The minimum qualifications, if any, prescribed for recruitment to the post; and
4.The salary of the post.
27. In The State of Maharashtra and Anr. v. Chandrakant Anant Kulkarni and Ors., AIR 1981 SC 1990; and Vice Chancellor, Lalit Narain Mithila University v. Dayanand Jha, AIR 1986 SC 1200, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post.
28. Similar view has been reiterated in E.P. Royappa v. State of Tamil Nadu and Anr., AIR 1974 SC 555; and Sub-Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors., AIR 2000 SC 594, wherein the Supreme Court following the earlier judgment in P.K. Roy, AIR 1968 SC 850, held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.
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29. In Union of India and Ors. v. S.L. Dutta and Anr., AIR 1991 SC 363; Union of India and Ors. v. N.Y. Apte and Ors., AIR 1998 SC 2651; State of U.P. and Ors. v. J.P. Chaurasia and Ors., AIR 1989 SC 19; and Kshetriya Kisan Gramin Bank v. D.B. Sharma and Ors., AIR 2001 SC 168, the Supreme Court held that whether the determination of two posts are equal or not, is a job of the Expert Committee and the court should not be interfered with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions etc. and lies within the exclusive domain of the rule making authority. (See also T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams and Ors., AIR 2009 SC 763)
30. In S.C. Chandra and Ors. v. State of Jharkhand and Ors., AIR 2007 SC 3021, the Supreme Court held :
"In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups......"
31. In S.P. Shivprasad Pipal v. Union of India and Ors., AIR 1998 SC 1882, the Supreme Court held as under :
Page 43 of 53HC-NIC Page 43 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT "......it is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the court can operate".
32. It is a settled legal proposition that it is not always impermissible to provide two different pay-scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide J.P. Chaurasia (AIR 1989 SC 19) (Supra) and Meva Ram Kanojia (AIR 1989 SC 1256). "Non-uniformities would not in all events violate Article 14." Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Ors. v. State of Bihar and Ors., AIR 1996 SC 1864; Associate Banks Officers' Association v. State Bank of India and Ors., AIR 1998 SC 32; and Official Liquidator, AIR 2008 SC (Supp) 1177.
33. In Steel Authority of India Limited and others v. Dibyendu Bhattacharya, (2011)11 SCC 122, the Supreme Court held as under :
In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the Page 44 of 53 HC-NIC Page 44 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.
The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bona fide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.
34. This Court fairly concedes to the fact that it is not equipped with the expertise to decide as to whether the Veterinary Officers attached with the Agriculture University and those attached with the State Government can be treated Page 45 of 53 HC-NIC Page 45 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT on par or not. A prima facie case could be said to have been made out by the writ applicants having regard to the materials on record, but I am of the view that it would be appropriate to ask the State Government to re-examine the entire issue or rather the entire case of the writ applicants in light of the relevant details, facts, data and the documents elaborated by the writ applicants.
35. It is now well settled that the Court, in exercise of power under Article 226 of the Constitution of India, should not interfere with the pay-scales without proper reasons and should be conscious of the fact that fixation of pay is not the function of the Court, it is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay- scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, would put forward their claims on the basis of such a change. Interfering with the prescribed pay-scales is a serious matter. However, the question is, whether the Government was justified in not accepting the recommendations of the Pay Anomaly Committee, and to what extent such recommendations are binding to the State Government.
36. The pay commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications required therefor. Although the pay commission is considered to Page 46 of 53 HC-NIC Page 46 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT be an expert body, yet, the State, in its wisdom and in furtherance of a valid policy decision may, or may not accept its recommendations. However, the State Government is not expected to brush aside the recommendations lightly and without assigning any reasons for the same. The recommendations of an expert body do carry some weight and sanctity. The decision of the State Government in not accepting the recommendations of the pay commission should not be an eyewash. It should appear from the materials on record that a proper application of mind was there by the Committee constituted by the Government to look into the recommendations and after thorough examination, the Committee has taken the decision. In the case on hand, I am not satisfied or rather convinced with the reasons assigned for not accepting the recommendations of the pay commission. In such circumstances, I have thought fit to ask the State Government to re-look into the matter having regard to the materials on record, which is quite voluminous.
37. At this stage, let me look into few provisions of the Gujarat Agricultural University Act, 1969.
38. Section 23 of the said Act, reads as under;
"23:-Determination of conditions of service of University employees: (1) Subject to the provisions of this Act, the designations, qualifications, method of recruitment, pay, allowances and other terms and conditions of service of Page 47 of 53 HC-NIC Page 47 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT all employees of the University and their powers and duties shall be such as may from time to time be determined by the Statutes.
(2) No officer or employee of the University shall be offered nor shall he accept any remuneration for any work in the University save such as may be provided for in the Statutes."
39. Section 25(2) reads as under;
25(2):-The Board shall consist of the following members:-
Class I- Ex-officio Members.
(1) The Vice Chancellor (2) The Directors of Campuses, (3) The Secretary to Government, Agriculture Department, (4) The Secretary to Government, Education Department, (5) The Secretary to Government, Finance Department, (6) The Director of Agriculture, (7) The Director of Animal Husbandry.
Class II Ordinary Members.
(A) Thirteen persons, not being officials, to be nominated as follows-
(a) To be nominated by the Chancellor-
(I) two agricultural scientists having background of agricultural research or education; and (II) two farmers;
(b) To be nominated by the State Government-
(iii) one person experienced in the field of co-operative marketing and one person experienced in the field of co- operative banking.
(iv) one industrial or manufacture having special knowledge in agricultural department.
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(v) one woman social worker preferably having background of rural development.
(vi) one engineer experienced in agricultural engineering
(vii) one educationist; and
(viii) three members of the Gujarat Legislative Assembly.
(B) One representative nominated by the Director General of India Council of Agricultural Research."
40. Section 31(c ) reads as under;
31(c ):the designations, qualifications, method of recruitment, pay, allowances, and other conditions of service of various categories of employees of the University and their powers and duties."
41. Section 51 reads as under;
51 Transfer of certain Institutions and colleges to the University:- (1) Notwithstanding anything contained in any other Act relating to the establishment of a University in the State or in the Statutes, Ordinances, regulations, rules and orders made thereunder, the colleges specified in the Scheduled appended to this Act shall as from the date as the State Government may by notification in the official Gazette, specify, (hereinafter in this section referred to as "the specified date") be disaffiliated from the Universities to which they may have been affiliated on the day immediately preceding such date and shall be transferred to and be maintained by the University as its constituent colleges.
(2) The control and management of the colleges specified in Sub-section (1) shall as from the specified date stand transferred to the University and all properties and assets and liabilities of the State Government in relation thereto shall stand transferred to, and vest in, or devolve upon, the University.
(3) Where before the specified date, the State Government has made any contract in relation to any of the said colleges, that contract shall be deemed to have Page 49 of 53 HC-NIC Page 49 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT been made by the University, and any reference therein to the State Government shall be construed as a reference to the University.
(4) Notwithstanding anything contained in this Act or the Statutes and regulations made thereunder, any student of a college specified in Sub-section (1) who immediately before the specified date, was studying in any such college or was eligible for any examination of the University to which his college was affiliated before the date as aforesaid (hereinafter referred to as the concerned University) shall be permitted to complete his course in preparation therefore, and the University shall make arrangements for the instruction, teaching, training and holding for such students examinations for such period and in such manner as may be prescribed in accordance with the curricula of studies of the concerned University.
(5) The control and management of all educational institutions of the Department of Agricultural, the Department of Animal Husbandry, the Fisheries Department and such of other Departments of the State Government as the State Government may, by notification in the official Gazette, specify in this behalf shall, from such date as the State Government may by order specify, be transferred to the University; and thereupon all properties and assets and liabilities of the State Government in relation to such institutions shall stand transferred to, vest in, or devolve upon the University.
(6) Notwithstanding anything contained in Sub-sections (1), (2) and (5), the Agricultural College, Junagadh, and all research and educational institutions in Junagadh District which were under the control and management of any of the Departments referred to in Sub-section (5) immediately before date specified under Sub-section (1) or as the case may be, Sub-section (5), shall not, save with the previous sanction of the State Government, be discontinued by the University nor shall the educational research or extension activities conducted in or by the said college or institutions immediately before the said date be stopped or reduced in scope or extent or transferred outside the said district, save with the like sanction.
(7) Notwithstanding anything contained in any other Act Page 50 of 53 HC-NIC Page 50 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT relating to the establishment of any University in the State, no such University shall as from the specified date be competent to award any degrees, diplomas, certificates or other academic distinctions in agriculture and the Faculties of Agriculture Dairy Service and Veterinary science thereof by whatever name called shall cease to function. "
42. Section 52 reads as under;
52.University to absorb staf of existing colleges and institutions transferred to it-(1) Notwithstanding anything contained in Section 51, such of the existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the University under Section 51 or such other staff connected therewith, as the State Government may, from time to time having regard to the necessity therefore, direct, shall be taken over and employed by the University, and every person so taken over and employed shall be subject to the provisions of this Act and the statutes and regulations made thereunder:
Provided that: -
(a) during the period of such employment all matters relating to the pay, leave, retirement, allowance, pension, provident fund and other conditions of services of the members of such staff shall be regulated by the Bombay Civil Service Rules, 1959, or such other rules, as may from time to time be made by the State Government.
(b) any such member shall have a right of appeal to the State Government against any order of reduction dismissal or removal from service or any other punishment.
(2) Subject to the provisions of Sub-sections (3) and (4) all permanent servants of the said staff taken over and employed by the University under Sub-section (1) shall have a lien on their posts in the service of the State Government and the period of their service under the University shall if they choose to revert to the service of the State Government be counted for their increments, pensions and other matters relating to their service.Page 51 of 53
HC-NIC Page 51 of 53 Created On Sat Oct 14 00:09:55 IST 2017 C/SCA/8444/2002 CAV JUDGMENT (3) Notwithstanding anything contained in Sub-section (1), every officer or servant of the State Government taken over by the University shall, within the period of two years from the date he is so taken over (or such further time, if any, as the State Government may decide), give notice in writing to the State Government:
(a) that he should be permitted to retire and thereupon he shall be permitted to retire from Government service and shall be entitled to such terminal benefits as compensation, pension or gratuity, or the like, as may be prescribed by the State Government or
(b) that he should be permanently absorbed in the service of the University and thereupon the University shall absorb him permanently in its service and any service rendered by him under the State Government shall be deemed to be service under the University, and he shall be entitled to receive from the University such terms and conditions of service as respect remuneration, leave and pension and such rights as respects disciplinary matters or rights similar thereto as changed circumstances may permit as are not less favourable than those to which that person was entitled immediately before he was taken over by the University, or
(c) that he should be permitted to revert to Government service and thereupon he shall be permitted to revert to the service on the same terms and conditions of service applicable to him immediately before he was taken over by the University.
4. If any officer or servant of the State Government fails to give notice under Sub-section (3) within the time referred to therein, he shall be deemed to have opted to be permanently absorbed in the service of the University under Clause (b) of Sub-section (3).
5. Notwithstanding anything contained in this section, in the case of any officer or servant of the State Government taken over by the University, if in the opinion of the University such officer or servant is not suitable or is surplus to its requirements, the University may move the State Government within a period of two years from the date he was so taken over to repatriate the said officer or servant to the service of the Government. Upon such request by the University the State Government shall take back the said officer or servant in its service."
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43. This writ application is disposed of with the following directions;
43.1 The State-respondents are directed to take up the case of the writ applicants for reconsideration as regards the pay scale.
43.2 The State-respondents shall reexamine the case of the writ applicants and the claim in details by taking into consideration their posts, duties and the functions. It shall be open for the State Government to seek the opinion of the experts, once again, if necessary, in this regard. Having regard to the fact that this petition is of the year 2002, and more than two decades have passed, the competent authority shall take up the issue as expeditiously as possible and see to it that an appropriate fresh decision is taken within a period of six months from the date of the receipt of the writ of this order. If the writ applicants want to supply any other material in addition to what has been noted in this judgment, then they may do so within a period of one month from today. Such additional material, if any, shall be adduced before the State Government.
(J.B.PARDIWALA, J.) Vahid Page 53 of 53 HC-NIC Page 53 of 53 Created On Sat Oct 14 00:09:55 IST 2017