Gujarat High Court
Patel Chandrakant N Since Deceased Thro ... vs Director Of Technical Education & 2 on 4 January, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/4679/1996 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4679 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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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PATEL CHANDRAKANT N SINCE DECEASED THRO HIS HEIRS &
2....Petitioner(s)
Versus
DIRECTOR OF TECHNICAL EDUCATION & 2....Respondent(s)
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Appearance:
MRS SANGEETA N PAHWA, ADVOCATE for the Petitioner(s) No. 1 - 1.2 , 2 -
3
MS VACHA DESAI, AGP for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 04/01/2016
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ORAL JUDGMENT
1. The petitioners seek benefit of selection grade of Rs.3700 5700/ with effect from 1.1.1986 on the following background :
2. The petitioners are working as Physical Instructors in Government or Government aided Engineering colleges affiliated to Gujarat University. The petitioner no.1 was appointed on 10.1.1969, petitioner no.2 on 1.2.1969 and petitioner no.3 in the year 1971. They thus completed 16 years of service on 10.1.1985, 1.2.1960 and in the year 1987 respectively. It is not in dispute that the pay scales for such teaching staff of various colleges including the engineering colleges were fixed as prescribed by UGC from time to time. All the petitioners have admittedly been granted the benefit of higher pay scale on completion of 8 years of service. They now aspire for bing granted selection grade after completion of 16 years of service.
3. According to the petitioners under a resolution dated 14.9.1988, pursuant to the recommendations of Mehrotra commission of Government of India, pay scales of teaching staff in the State colleges were revised with effect from 1.1.1986. AppendixII to the said resolution pertained to pay scales of Librarian and Physical Education Personnel in Universities and colleges. Paragraph no.9 of the said AppendixII pertained to benefits of selection grade of Rs.37005700/ to those Assistant Librarian and Assistant Director of Physical Education who had been placed in the senior scale. This was subject to certain conditions.
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Paragraph no. 12 provides that the the College Librarians and Directors/Instructors of Physical Education in colleges who were qualified and who have been placed in the senior scale would also be eligible for placement in the selection grade of Rs.37005700/, if they fulfill the criteria prescribed in paragraph no.11 above, which in turn would mean paragraph no.11 of AppendixI to the said resolution which provides for "coverage". According to the petitioners this paragraph no.11 which required certain stringent conditions of having Ph.D degree or equivalent published work besides others, was later on diluted or clarified by the Government under corrigendum dated 24.12.1991 by which paragraph no.11 was replaced by new paragraph no.11 which no longer provided for such stringent requirements.
4. On the other hand, the Government contends that the case of the petitioners is not governed by the said Government Resolution dated 14.9.1988 but under Government Resolution dated 18.8.1989. The Government would point out that the Government Resolution dated 14.9.1988 was confined to Government affiliated colleges other than technical educations colleges which were governed by norms set out by All India Council of Technical Education ("AICTE" for short). A separate resolution dated 18.8.1989 was therefore, issued. Though this also envisaged grant of selection grade of Rs.37005700/, the same was subject to conditions laid down therein. The Government points out that there were certain amendments made in the said Government Resolution dated 18.8.1989. The resolution dated 25.10.1989 which contained Annexure5 of the same Page 3 of 17 HC-NIC Page 3 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT date and provided for certain criterias to be fulfilled by the instructors of Physical Education in the colleges who may have been placed in senior scale and are seeking selection grade of Rs.37005700/. Multiple replies filed by the Government would highlight that the petitioners do not fulfill any of the criteria.
5. Previously, the petitioners had approached the High Court by filing Special Civil Application No.6240/1995 for non grant of selection grade which petition came to be disposed of by an order dated 5.12.1995 asking the Government to give reasons for such action. Pursuant to such order, the Government passed a speaking order dated 29.3.1996 in which various requirements prescribed in the said Government Resolution dated 18.8.1989 as amended by Government Resolution dated 25.10.1989 have been highlighted and it is stated that out of five requirements, the petitioners fulfill none of the them. Central question therefore, is whether the respondents were justified in pressing those requirements in service in order to deny the petitioners benefit of selection grade?
6. Learned counsel for the petitioners vehemently contended that Government Resolution dated 18.8.1989 simply does not apply to the petitioners. Their pay scales and other service benefits are governed by Government Resolution dated 14.9.1988. She pointed out that by virtue of clarification or amendment under corrigendum dated 24.12.1991, the requirements of possessing Ph.D degree and other stringent requirements originally contained in Government Resolution dated 14.9.1988 for grant of Page 4 of 17 HC-NIC Page 4 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT selection grade were completely done away with. Since the petitioners fall within the purview of these conditions, non granting the benefit would be illegal. In the alternative, counsel submitted that even if Government Resolution dated 18.8.1989 were to apply, the petitioners were eligible for the selection grade. She would place reliance on paragraph no.(10) of AnnexureV of the said resolution to contend that no such insistence on petitioners possessing Ph.D decree could be made by the respondents.
7. Counsel further submitted that from early days, the Librarians and Physical Instructors have been considered at par for all service benefits. When the Librarians were being discriminated for grant of certain benefits, they approached the High Court by filing Special Civil Application No.872/1985. Learned Single Judge by judgement dated 18.4.1996 held that this would be a case of discrimination and granted consequential benefits. Counsel therefore, contended that in any case the petitioners cannot be treated differently from other members of the teaching staff of the Engineering colleges where all, to the exclusion of the petitioners, have been granted benefit of selection grade without insistence on Ph.D degree and other stringent requirements referred to by the respondents. Counsel contended that not only the Librarians but other Assistants, Professors, Lecturers have all been granted such higher pay scales even in the Engineering colleges by virtue of the Government policy without fulfilling any of the conditions. Action of the respondent of depriving the petitioners who form a small class of physical instructor of such benefits is wholly Page 5 of 17 HC-NIC Page 5 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT discriminatory.
8. On the other hand, learned AGP Ms. Vacha Desai opposed the petition contending that the Government Resolution dated 18.8.1989 in continuation with Government Resolution 25.10.1989 clearly envisages fulfilling certain criteria before a Physical Instructor can get the benefit of the selection grade. The department having examined their cases found that the petitioners do not fulfill any of the conditions. The decision of the respondents therefore, not to grant such benefits is just and proper. She pointed out that the resolution dated 18.8.1989 for grant of revised pay scales with effect from 1.1.1986 would cover the case of the petitioners. In any case, they have not opted out for such pay revision. She drew my attention to the averments made in the affidavit dated 2.5.2013 in which it is stated that all the petitioners were granted pay scales and senior selection grade as per the said Government policy itself. Reference is made to AnnexureRIV annexed to the said reply which contained pay fixation order of one of the petitioners also refers to Government Resolution dated 25.10.1989.
9. First question to be considered is, are the petitioners governed by Government Resolution dated 18.8.1989 or as contended by the petitioners one dated 14.9.1988? Their prime contention is that Government Resolution dated 18.8.1989 would cover only those employees who have been appointed after 1.1.1986. This contention however, cannot be accepted. Said Government Resolution nowhere provides that it will govern the pay scales of those Page 6 of 17 HC-NIC Page 6 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT employees who are appointed only after 1.1.1986. In fact, the preamble to the resolution reads as under :
"Government had sanctioned pay scales to Engineering College Teachers under G.R.E.D. NOTEM1174/36329GH dated 25101977. Thereafter, Government of India, having examined the recommendations contained in the report of the National Expert Committee, handed by Prof. R.N. Dogra and the recommendations made by the All India Council of Technical Education (AICTE) have decided to implement the scheme of revision of pay scales of Teachers in Engineering Colleges and other Degree level institutions including Architectural, Town Planning, Management, Pharmacy and Applied Arts and Crafts Institutions with effect from January 1, 1986 vide its letter dated 28 th February 1989 cited above. The question of revision of pay scales of Engineering College Teachers on the lines of Government of India letter was under consideration of State Government for some time past."
10. In view of this background, in paragraph no.2, it has been provided interalia that the Government after careful consideration, has decided that pay scales of the teachers in Engineering colleges, both Government as well as non Government grantinaid colleges/institutions should be revised with effect from 1.1.1986. The terms and conditions of revision of pay scales are mentioned at AnnexureI. AnexureII contained formula for pay fixation. The Government Resolution thus clearly includes within its sweep revised pay scales for all employees of the Government as well as non Government grant in aid institutions and Departments of Universities of Engineering and Technology institutions. Appendix, as noted, pertains to details of revised pay scales. Paragraph no.1 thereof Page 7 of 17 HC-NIC Page 7 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT pertains to coverage and reads as under :
"1. Coverage This scheme applies to Teachers Librarians and Physical Educational Instructors in Engineering Colleges, Engineering and Technology Faculties/ Departments of Universities and other similar institutions of Technical Education. All teachers Librarians and Physical Educational Instructor appointed after the date from which the scheme has been given effect will be governed by the provisions of the scheme."
11. Paragraph no.2 provides for revised pay scales with effect from 1.1.1986. Paragraph no.1 of the Appendix cannot be read in isolation to contend that such Government Resolution will apply only to those appointed after 1.1.1986. This is for multiple reasons. First and foremost the resolution itself nowhere makes any such distinction. No such distinction can be readily read through a reference in the Appendix which as per the main Government Resolution itself provides for details of revised pay scales. Secondly, relevant portion of paragraph no.9 of Appendix reads as under :
"(b) The existing Lecturers who do not possess these qualifications or who might be recruited in future without these qualifications will be eligible for a benefit as in 9(a) above only in service for the purpose of promotion as and when they acquire these qualifications, but they will not be eligible for advance increments.
(c) Existing Lecturers who possess these qualifications will also be eligible for the benefit in service for the purpose of promotion."Page 8 of 17
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12. This reference to the existing Lecturers would essentially therefore, be of those who may have been appointed after 1.1.1986 or even before that. Further paragraph no.13 provides that existing Lecturers who have completed or will complete a total period of 16 years of service on 1.1.1986 or thereafter, shall be eligible for placement in the selection grade. Any reference to those who might have completed 16 years of service on 1.1.1986 must be to the existing staff, thus clearly belying the contention that the scheme applies only to those who are appointed after 1.1.1986. Whatever doubt one may have would quickly disappear upon reading further Government Resolution dated 25.10.1989 in which paragraph no.20 through amendment was added to the original Government Resolution dated 18.8.1989. Such paragraph no.20 reads as under :
"20. Option Form : All the teachers shall have the option to come to the revised scale with effect from 1.1.86 or from a later date chosen by them. The teachers and other personnel will be required to exercise their option in the form appended to this resolution within one month from the date of issue of this resolution. Option once exercised shall be final. If an incumbent has not exercised his option within the prescribed time limit, he shall be deemed to have elected to be governed by the revised pay scales with effect from 1.1.86."
13. Thus option was given to the existing employees to come over to the revised pay scale with effect from 1.1.1986 as per the said Government Resolution dated 18.8.1989. Clearly thus the Government Resolution dated 18.8.1989 was meant to cover all employees whether Page 9 of 17 HC-NIC Page 9 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT recruited before or after 1.1.1986. Only distinction being in case of those appointed after 1.1.1986, coverage would be compulsory. For those appointed before 1.1.1986, it would be optional and such option would be deemed to have been exercised by default. It is quite clear that by Government Resolution dated 14.9.1988, pursuant to Mehrotra commission report pay scales of various teaching staff in different Government and aided colleges came to be revised. While doing so it was specifically provided that scheme would not include Engineering, Ayurvedic. Pharmacy, Agricultural, Medical and Veterinary Science colleges. Thus the case of pay revision of such employees was to be separately considered. The logic provided for such purpose is also unfailing. Now that the educational qualifications of the teaching staff of engineering colleges were being recommended by AICTE, separate consideration for pay revision was found necessary. It was in this background that the report of commission headed by Professor R.N. Dogra made recommendations which the AICTE decided to implement which was the genesis of issuance of the said resolution dated 18.8.1989.
14. Quite apart from the said resolution dated 18.8.1989 covering the case of the petitioners, as noted, under Government Resolution dated 25.10.1989, it was envisaged that all the teachers would have an option to come to the revised pay scales with effect from 1.1.1986. It was further provided that if within the prescribed time limit such option is not exercised, concerned employee would be deemed to have selected to be governed by such pay revision. It is not the case of of the petitioners that they Page 10 of 17 HC-NIC Page 10 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT exercised a conscious option. The petitioners' pay revision order also, as noted, clearly refers to the said resolution dated 25.10.1989. In fact, but for the said resolution dated 18.8.1989, read with later resolution dated 25.10.1989, the petitioners would not be entitled to any revision with effect from 1.1.1986 at all since the Government Resolution dated 14.9.1988 excluded the staff of Engineering colleges.
15. The matter however, does not end here. The question, is despite being governed by the said resolution dated 18.8.1989, can the respondents press the conditions contained in paragraph no. 9 of AnnexureV to the resolution dated 25.10.1989 for non granting of benefits of selection grade to the petitioners? This question requires closer examination. The resolution dated 18.8.1989 itself envisaged grant of selection grade wherein in Appendix at paragraph no.11 it was provided as under :
"Every lecturer in the Senior Scale will be placed in a selection grade of Rs.37005700.
(a) If he has completed 8 years service in the senior scale OR If he has at least 8 years service as lecturer in an Engineering college and has 'total service' not less than 16 years "Total Service" as mentioned above will be reckoned as 4/5 x(for Duration of Service as Tutor/Demonstrator/ Assistant Lecturer in an Engineering College or Polytechnic after acquiring the requisite qualification and experience for the post of lecturer of the Eng. College) + Duration as a regular lecturer in Engineering College/ Polytechnic after acquiring the requisite qualification and experience for the post of a lecturer of the Engg. College.Page 11 of 17
HC-NIC Page 11 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT Such weightage will not be admissible beyond 16 years."
16. Paragraph no.14 of the said Appendix provided that scheme of revised pay scales of Librarians and Physical Education Instructors shall be in accordance with the rules and regulations as mentioned in AnnexureV. AnnexureV to the said resolution in turn in paragraph no.7 provided as under :
"7. Every Assistant Librarian and Assistant Director of Physical Education in the Universities who has been placed in the Senior Scale will be eligible for promotion to the post of Deputy Librarian and Deputy Director of Physical Education respectively in the scale of pay of Rs.37005700 if he/she has :
(a) completed 8 years of service in the senior scale provided that the recruitment of 8 years will be relaxed if his/her total service is not less than 16 years;
(b) obtained a Ph.D degree or an equivalent published work;
(c) made significant contributions to the development of Library Services/Physical Education in the University as evidenced by selfassessment, reports of referees, professional improvement in the Library services/Physical Education activities, etc. as the case may be;
(d) participated in two refresher courses/summer institutes each of approximately 4 weeks duration, or engaged in other appropriate continuing education programme of comparable quality as may be specified by the UGC, after placement in the senior scale; and
(e) consistently good performance appraisal reports."Page 12 of 17
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17. These conditions were however, relaxed as can be seen in paragraph no.9 of AnnexureV of the said resolution which read as under :
"9. Those Assistant Librarians and Assistant Directors of Physical Education in the Universities in the Senior Scale who do not have Ph.D degree or equivalent published work, but fulfill the other criteria, mentioned in para 9 above will be placed in the grade of Rs.37005700 subject to the recommendations of the Committee mentioned in para.10 above. They will be designated as Assistant Librarian and Assistant Director of Physical Education in the Selection Grade."
18. With respect to Librarians and Physical Instructors of Physical Education, in paragraph no.10, it was provided as under :
"10. The College Librarians and Directors/Instructors of Physical Education in Colleges, who have been placed in the Senior Scale will also be eligible for placement in the Selection Grade of Rs.37005700 if they fulfill the criteria prescribed in para 11 above."
19. Reference to paragraph no.11 above in the said paragraph no.10 in AnnexureV must be to para.11 of the Appendix to the said Government Resolution dated 18.8.1989 which has already been reproduced herein above.
20. By virtue of such prescription contained in paragraphs no.7,9 and 10 of the AnnexureV to the said Government Resolution dated 18.8.1989 read in continuation with paragraph no.11 of the Appendix to the Page 13 of 17 HC-NIC Page 13 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT same resolution, the Physical Instructors would also be entitled to selection grade of Rs.37005700 if they fulfill the criteria contained in paragraph no.11 which did not require possessing Ph.D degree or other stringent conditions noted above. This much is more than clear. Had this be the only reference of decision of Government, things would not have been any more complicated. However, Government issued a fresh AnnexureV dated 25.10.1989 which also pertained to the revision of pay scales of Physical Education Instructors. This Government Resolution, contained paragraph no.9 in which once again detailed stringent requirements for any Physical Instructor to be eligible for selection grade of Rs.37005700 were prescribed. This paragraph no.9 reads as under :
"7. Every qualified Instructor of Physical Education in the college who has been placed in the Senior Scale will be eligible for the scale of pay of Rs.37005700 if he/she has :
(a) completed 8 years of service in the senior scale, provided that the recruitment of 8 years will be relaxed if his/her total service is not less than 16 years;
(b) obtained a Ph.D degree or an equivalent published work;
(c) made significant contributions to the development of Physical Education in the University as evidenced by self assessment, reports of referees, professional improvement in the Physical Education activities, etc. as the case may be;
(d) participated in two refresher courses/summer institutes each of approximately 4 weeks duration, or Page 14 of 17 HC-NIC Page 14 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT engaged in other appropriate continuing education programme of comparable quality as may be specified by the UGC, after placement in the senior scale; and
(e) consistently good performance appraisal reports."
21. Though this Government Resolution dated 25.10.1989 is in the nature of amendment, it does not in any manner supersede original Government Resolution dated 18.8.1989. There is nothing in AnnexureV to the said Government Resolution which will indicate that relaxed standards for considering the case of Physical Instructors for grant of selection grade as contained in Government Resolution dated 18.8.1989 would be done away with. If one were to read the said provisions contained in paragraph no.9 of AnnexureV to the Government Resolution dated 25.10.1989 so as to bring back such stringent requirements, the entire Government policy wold be rendered discriminatory and hostile to the Physical Instructors. As pointed out by the petitioners, such requirements have not been applied in case of any other teaching staff of the Engineering colleges which would include the Librarians, professors and lecturers. Thus without the aid of such stringent requirements all other staff members of Engineering colleges would be eligible for grant of selection grade and I am told have been granted selection grade. The Physical Instructors however, would be subjected to such requirements.
22. It is perhaps through conscious decision making process that the Government previously reduced such requirements in case of existing staff and the stringent Page 15 of 17 HC-NIC Page 15 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT conditions of Ph.D and equivalent publications and other requirements were not insisted upon from the existing staff. Bringing such requirement back through amending the resolution in case of only one stream of the employees, whereas not making any such prescription for the rest of the teaching staff, would be wholly discriminatory.
23. Even otherwise Government itself has issued corrigendum dated 24.12.1991 substantially toning down the requirement for grant of selection grade by substituting original paragraph no. 11(a) of the Appendix to the Government Resolution dated 18.8.1989 as under :
"Every lecturer in the Senior Scale will be placed in a selection grade of Rs.37005700.
(a) If he has completed 8 years service in the senior scale;
OR If he has at least 8 years service as lecturer in an Engineering college and has 'total service' not less than 16 years;
"Total Service" as mentioned above will be reckoned as 4/5 x(for Duration of Service as Tutor/Demonstrator/ Assistant Lecturer in an Engineering College or Polytechnic after acquiring the requisite qualification for the post of lecturer of the Eng. College) + Duration as a regular lecturer in Engineering College/ Polytechnic after acquiring the requisite qualification for the post of a lecturer of the Engg. College. Such weightage will not be admissible beyond 16 years."
24. This lends support to the petitioners' case that the Government did not insist on the additional requirements in case of other employees for granting selection grade Page 16 of 17 HC-NIC Page 16 of 17 Created On Fri Jan 08 00:09:21 IST 2016 C/SCA/4679/1996 JUDGMENT except in case of Physical Instructors.
25. Under the circumstances, the petition is allowed. Decision of the respondent dated 29.3.1996 denying the benefit of selection grade to the petitioners by applying the requirements of paragraph no.9 of AnnexureV of Government Resolution dated 25.10.1989 is set aside. The respondents shall consider the case of the petitioners for such selection grade from due dates when they respectively completed 16 years of service applying original requirements contained in Government Resolution dated 18.8.1989 particularly bearing in mind paragraph no.10 of Annexure5 read with paragraph no.11 of the Appendix to the said Government Resolution dated 18.8.1989.
26. Petition is disposed of (AKIL KURESHI, J.) raghu Page 17 of 17 HC-NIC Page 17 of 17 Created On Fri Jan 08 00:09:21 IST 2016