Gujarat High Court
Hasmukhbhai Jivabhai Patel vs State Of Gujarat & 3 on 19 April, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3210/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3210 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3211 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3212 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3213 of 2016
With
SPECIAL CIVIL APPLICATION NO. 4486 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 4501 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3214 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5118 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 5125 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5386 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 5394 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6172 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6609 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6895 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5966 of 2016
With
SPECIAL CIVIL APPLICATION NO. 7629 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6886 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5962 of 2016
With
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SPECIAL CIVIL APPLICATION NO. 5964 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6716 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6791 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6888 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6889 of 2016
With
SPECIAL CIVIL APPLICATION NO. 11912 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 11926 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14330 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14356 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14329 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14355 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14926 of 2016
With
SPECIAL CIVIL APPLICATION NO. 15579 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 15588 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16271 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 16282 of 2016
With
SPECIAL CIVIL APPLICATION NO. 20496 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16061 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16639 of 2016
TO
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SPECIAL CIVIL APPLICATION NO. 16661 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6553 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 6557 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2569 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2572 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2574 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2575 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2576 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2921 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2922 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2923 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of YES
India or any order made thereunder ?
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==========================================================
HASMUKHBHAI JIVABHAI PATEL ... Petitioner(s)
VERSUS
STATE OF GUJARAT & 3 ...Respondent(s)
==========================================================
Appearance:
MR SN SHELAT, SR. ADVOCATE; MR SHALIN MEHTA, SR. ADVOCATE
WITH MS VIDHI J BHATT, ADVOCATE AND MR P.P. JUNEJA, ADVOCATE
for the Petitioners
MS SANGITA VISHEN, AGP for the Respondent(s) No. 1 - 3
MR MJ MEHTA, ADVOCATE for the Respondent(s) No. 4
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 19/04/2017
CAV JUDGMENT
1. This analogous cluster of 130 matters involves
similar questions of facts and law, and therefore
all the matters were heard together finally at
the admission stage with the consent of the
learned Advocates for the parties.
2. Special Civil Application No.3210 of 2016 being
the lead matter, the facts of the said petition
shall be considered for the sake of convenience.
The petitioner in the said petition has prayed
for the following reliefs in paragraph 24:-
"24. (A) Your Lordships may be pleased to
issue a writ of certiorari or any other
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appropriate writ, order or direction
declaring the apathy shown by the respondent
authorities in removing the anomaly in pay
of the petitioner resulting from the office
order dated 10.8.2015 placing the 85
Lecturers in Senior Scale and Selection
Grade on retrospective basis as contrary to
rules, unreasonable, arbitrary, irrational
and violative of Articles 14, 16 and 21 of
the Constitution;
(B) Your Lordships may be pleased to issue a
writ of mandamus or any other appropriate
writ, order or direction directing the
respondent authorities to remove the anomaly
in pay of the petitioner by stepping up his
pay to the figure equal to the pay as fixed
for his junior with effect from the date
when his junior started getting more pay
with all the consequential benefits,
including arrears of pay and allowances;
(C) Pending admission and final hearing of
the present petition, Your Lordships may be
pleased to direct the respondent authorities
to process the case of the petitioner for
stepping up his pay in terms of rule 21 of
the Gujarat Civil Services (General
Conditions of Services) Rules, 2002"
3. The petitioners in Special Civil Application
No.16061 of 2016 and others have additionally
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prayed to direct the respondents to grant the
benefits of senior scale/selection grade, which
have already become due and to place the
petitioners to the same stage in the pay-scale of
Rs.37,400-67,000 in which the juniors to the
petitioners have been placed as on today.
4. As such the service details of each of the
petitioners in all these petitions have been
furnished by the learned Advocates for the
petitioners, which have remained undisputed at
the instance of the respondents. A few relevant
facts taken from the Special Civil Application
No.3210 of 2016 are that the petitioner of the
said petition was selected by the Gujarat Public
Service Commission (for short "GPSC") in the year
2000 and appointed to the post of lecturer in
English vide the Government Resolution dated
27.8.2001 issued by the Education Department. By
the office order dated 5.11.2001 issued by the
Commissioner of Higher Education, the petitioner
was appointed as the lecturer in English in the
Government Arts and Science College, Ahava. The
petitioner was placed in the Lecturer (Senior
Scale) with effect from 9.11.2007. According to
him, he was due for placement in Lecturer
(Selection Grade) w.e.f. 9.11.2012 and despite
the Departmental Promotion Committee having
recommended the grant of the same, the petitioner
has not been put in the Selection Grade.
5. It is further case of the petitioner that after
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the appointment of the petitioner and others
through the selection by GPSC, some 111
lecturers, who were rendering services on adhoc
basis also got appointed on regular basis through
the selection by GPSC and they have been shown as
juniors to the petitioners in the seniority list.
As alleged in the petition, the Government in
Education Department vide the Government
Resolution dated 3.8.2011 (Annexure-B) allowed
the adhoc services rendered by the said 111 adhoc
lecturers prior to their regular appointment on
the post (hereinafter referred to as "the
subsequent appointees") to be counted for the
purpose of pay, leave, and pension, subject to
the conditions mentioned therein. It appears
that subsequently considering the various
judgements of the Supreme Court, the Government
in Education Department clarified to the
Commissioner of Higher Education vide the letter
dated 24.12.2012 that the adhoc services were to
be counted for the purpose of leave, pay, and
pension only and not for the purpose of seniority
(Annexure-C). Despite the said position, the
Government in Education Department again issued a
Government Resolution dated 22.12.2014 (Annexure-
D) resolving to count adhoc services for the
purpose of granting Senior Scale/Selection Grade
to those subsequent appointees, subject to the
conditions stipulated in the Government
Resolution dated 17.6.1999. The Commissioner for
Higher Education thereafter issued the Office
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Order dated 10.8.2015 (Annexure-E) approving the
placement of 85 out of 111 subsequent appointees
in the Senior Scale of Rs.3000 - 5000/10,000-325-
15200 and the selection grade of Rs.12,000-420-
18300 with retrospective effect counting their
adhoc services.
6. As per the case of the petitioners, by virtue o
the said Office Order dated 10.8.2015, the said
85 subsequent appointees came to be granted the
Senior Scale/Selection Grade with retrospective
effect from the dates when they were not even
born in the cadre. As a result thereof the said
subsequent appointees though juniors to the
petitioners are getting much higher pay than the
petitioners. The petitioners have placed on
record the statements showing the dates from
which the said subsequent appointees were granted
Senior Scale/Selection Grade. The petitioners
invoking the principle of "equal pay for equal
work" and pressing into service Rule 21 of the
Gujarat Civil Services (Pay) Rules 2002
(hereinafter referred to as the "GCSR") have
claimed that the petitioners' pay is required to
be stepped up to the figure equal to the pay
fixed for the subsequent appointees. According
to the petitioners, they had made representations
through their Association to the respondents for
removing the anomalies created as a result of the
Government Resolution dated 3.8.2011 and Office
Order dated 10.8.2015, however, the respondents
having failed to pay any heed to it, the
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petitions have been filed.
7. The respondent State has resisted the petitions
by filing a common reply in SCA No.3210 of 2016,
contending inter alia that the petitions suffer
from the vice of non-joinder of necessary
parties, inasmuch as the petitioners have not
joined the said subsequent appointees - lecturers
to whom the benefits of Government Resolution
dated 3.8.2011 read with the Government
Resolution dated 22.12.2014 and the Office Order
dated 10.8.2015 have been granted. It is further
contended that neither the provisions contained
in Rule 21 of the GCSR, nor the analogy of
stepping up of pay would be applicable to the
case of the petitioners. According to these
respondents, the said Government Resolutions were
issued in consonance with the guidelines
formulated by the University Grant Commission as
well as the polices framed by the State
Government governing the regularization of the
past services rendered by the adhoc employees,
upon such employees being selected through
regular selection by the GPSC. The petitioners
have filed the rejoinder reiterating their stand
for stepping up their pay applying the analogy of
Rule 21 of the GCSR.
8. The learned Sr. Advocate Mr.S.N. Shelat with
learned Sr. Advocate Mr.Shalin Mehta with the
learned Advocate Mr.P.P. Juneja for the
petitioners, taking the Court to the various
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provisions of the UGC Regulations of 2000 and of
2010 submitted that the Senior Scale and
Selection Grade are being granted to the teachers
under the Career Advancement Scheme (for short
"CAS") as per the said regulations. They
further submitted that the posts of promotion
being few in number, in order to give the
lecturers promotional avenues, the said CAS right
from the beginning has been treated as promotion
by the UGC as well as by the respondent
authorities, and therefore, the principle
analogous to the Rule 21 of the GCSR would be
applicable to the cases of the petitioners.
According to them equals are being treated as
unequals, and therefore, the anomaly created by
the respondents by issuing the Government
Resolutions is required to be set right by
putting the petitioners at par with their juniors
in the matter of granting Senior Scale and
Selection Grade. It is also submitted that as on
today the petitioners have not been paid even the
selection grade, though recommended by the
Departmental Promotion Committee (DPC), whereas
their juniors have been granted the said benefits
of selection grade with retrospective effect, as
a result of which the petitioners are getting the
pay-scale of Rs.15,600-39,100, whereas the said
juniors, who are the beneficiaries of the
Government Resolution dated 22.12.2014, are
getting the pay-scale of Rs.37,400-67000.
9. Mr.Mehta while severely criticizing the action of
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the respondent State in issuing the Government
Resolutions for counting the past services of the
adhoc employees on their appointment on regular
basis through GPSC, for the purpose of CAS,
submitted that the petitioners having not
challenged those Government Resolutions, the
said subsequent appointees, who have been granted
the benefits of the said Government Resolutions,
were not required to be joined as the party
respondents. Mr.Mehta vehemently submitted that
when common seniority list is prepared for the
petitioners and the subsequent appointees, and
when all are discharging the same duties and
functions, it is unconceivable that the juniors
would get more pay than their seniors. According
to him, the petitioners are required to be paid
the same pay as is being paid to the subsequent
appointees, on the basis of the principle "equal
pay for equal work." According to him, the
classification has to be founded on intelligible
differentia and on rational grounds. In the
instant case, the sole differentia pressed into
service by the respondents is the past adhoc
services of the concerned 85 lecturers, which
differentia can not be said as intelligible or
reasonable. He has relied upon the decision of
the Supreme Court in case of Gurcharan Singh
Grewal and Anr. Vs. Punjab State Electricity
Board and Ors., reported in 2009(3)SCC 94 and
submitted that the respondent authorities are
required to be directed to remove the anomaly.
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10. However, the learned AGP Ms.Sangita Vishen for
the respondent State submitted that the
petitioners having not joined the 85 subsequent
appointees, who have been granted the benefit of
the Senior Scale and Selection Grade on the basis
of the Government Resolutions, the petitions are
bad for non-joinder of necessary parties.
Ms.Vishen referring to the earlier Government
Resolutions and UGC Regulations submitted that
the Government Resolutions dated 3.8.2011 and
22.12.2014 were in consonance with the UGC
Regulations and the Government policies. She
further submitted that the adhoc services of the
said 85 lecturers have not been counted for the
purpose of Seniority, and therefore, it could not
be said that the State had meted out any
discriminatory treatment to the petitioners.
According to her, the said 85 lecturers were
treated as a separate class considering their
past adhoc services, which could not be said to
be unreasonable or violative of Article 14 and/or
16 of the Constitution of India. She further
submitted that the reliance placed by the
petitioners on Rule 21 of GCSR was misplaced,
inasmuch as the condition precedent for invoking
the said provision is that there has to be a
promotion given to the junior employee to the
higher post in the hierarchy, whereas in the
instant case, no such promotion has been given to
the said subsequent appointees. According to
her, Rule 21 refers to the actual promotion and
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not grant of pay in lieu of stagnation in
promotion or by way of career advancement scheme.
11. In the light of submissions made by the learned
Advocates for the parties, it is required to be
noted that interestingly, though the petitioners
have severely criticized the action of the
respondent State in issuing the Government
Resolutions dated 3.8.2011, 22.12.2014 and Office
Order dated 10.8.2015, whereby the
lecturers/assistant professors junior to the
petitioners have been granted all the benefits of
their past services rendered on adhoc basis, the
petitioners have not challenged the said
Government Resolutions or the action taken
pursuant to the said Government Resolutions. On
the contrary, they have claimed parity with them
and prayed for the grant of Senior Scale and
Selection Grade from the date the said subsequent
appointees have been granted. It clearly emerges
that the petitioners have chosen not to challenge
the legality and validity of the said Government
Resolutions, as indirectly they also want the
benefit of the said Government Resolutions,
though according to the petitioners the said
Government Resolutions, being not in conformity
with the legal position propounded by the Supreme
Court and also not in conformity with the UGC
Regulations, were illegal and could not have been
issued. However, since they have not challenged
the said Government Resolutions or the action of
the respondent State in extending the benefit of
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the said Government Resolutions to the subsequent
appointees, it could not be said that the
petitions are bad for nonjoinder of the said 85
lecturers. The petitioners have not sought any
relief against them, and therefore also, they
could not be said to be necessary parties.
12. Under the circumstances, let us examine the
issue as to whether the petitioners are entitled
to claim parity with the said subsequent
appointees in the matter of Senior Scale and
Selection Grade, either on invocation of the
principle of "equal pay for equal work", or on
application of the Rule 21 of the GCSR?
13. In order to appreciate the contentions
raised in the petitions, it would be beneficial
to refer to some of the relevant provisions of
UGC Regulations. The UGC in exercise of the
powers conferred under Clause (e) and (g) of Sub-
section (1) of Section 26 of the UGC Act, 1956,
and in super-session of the earlier Regulations
of 2000 as amended from time to time, has framed
the Regulations called UGC (minimum
qualifications for the appointment of the
teachers and academic staff in the Universities
and Colleges and other measures for the
maintenance of standards in higher education)
Regulations 2010 (hereinafter referred to as "the
UGC Regulations 2010"). The said Regulations are
applicable to every University established or
incorporated by or under the Central Act,
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Provincial Act or State Act as also to every
institution, including the Institution deemed to
be a University under Section 3 of the said Act.
However, it has been further provided that any
candidate, who became eligible for promotion
under the career advancement scheme (CAS) on or
after 31.12.2008, the promotion of such a
candidate shall be governed by the UGC
Regulations 2010. Since the petitioners are
claiming the Senior Scale as granted to their
juniors with effect from the date prior to
31.12.2008, and Selection Grade with effect from
the date after 31.12.2008, both the Regulations
of 2000 and of 2010 as amended from time to time
would be relevant, which as such by and large are
similar, so far as CAS and grant of Senior
Scale/Selection Grade to the lecturers/Assistant
Professors are concerned.
14. The Regulation No.2.0.0 of the Regulations
of 2000 deals with the career advancement. The
Regulation No.2.1.0 thereof reads as under:-
"2.0.0 Career Advancement.
2.1.0 Minimum length of service for
eligibility to move into the grade of
Lecturer (Senior Scale) would be four years
for those with Ph.D., five years for those
with M.Phil, and six years for others at the
level of Lecturer, and for eligibility to
move into the Grade of Lecturer (Selection
Grade)/Reader, the minimum length of service
as Lecturer (Senior Scale) shall be
uniformly five years."
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15. The Regulation No.2.2.0 deals with the
eligibility criteria of the lecturer for his
placement in Senior Scale and the Regulation
No.2.3.0 deals with the eligibility of the
lecturer for his placement in selection grade,
which read as under:-
"2.2.0 Lecturer (Senior Scale).
A Lecturer will be eligible for placement in a
senior scale through a procedure of
selection, if she/he has:
(i) Completed 6 years of service after
regular appointment with relaxation of one
year and two years, respectively, for those
with M.Phil., and Ph.D.
(ii) Participated in one orientation course
and one refresher course of approved
duration, or engaged in other appropriate
continuing education programmes of
comparable quality as may be specified or
approved by the University Grants
Commission. (Those with Ph.D. Degree would
be exempted from one refresher course).
(iii) Consistently satisfactory performance
appraisal reports.
2.3.0 Lecturer (Selection Grade).
Lecturers in the Senior Scale who do not
have a Ph.D. degree or equivalent published
work, and who do not meet the scholarship
and research standards, but fulfill the
other criteria given above for the post of
Reader, and have a good record in teaching
and, preferably, have contributed in various
ways such as to the corporate life of the
institution, examination work, or through
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extension activities, will be placed in the
Selection Grade, subject to the
recommendations of the Selection Committee
which is the same as for promotion to the
post of Reader. They will be designated as
Lecturers in the Selection Grade. They
could offer themselves for fresh assessment
after obtaining Ph.D., and/or fulfilling
other requirements for promotion as Reader
and, if found suitable, could be given the
designation of Reader."
16. So far as counting of the past services is
concerned, it has been provided in Regulation
8.0.0 inter alia as under:-
"8.0.0 Counting Past Service.
Previous service, without any break as a
Lecturer or equivalent, in a university,
college, national laboratory, or other
scientific organisations, e.g. CSIR, ICAR,
DRDO, UGC, ICSSR,ICHR and as a UGC Research
Scientist, should be counted for placement
of lecturer in Senior Scale/Selection Grade
provided that
8.1.0 xxx
8.2.0 xxx
8.3.0 xxx
8.4.0 xxx
8.5.0 xxx
8.6.0 The appointment was not adhoc or in a
leave vacancy of less than one year
duration. Adhoc service of more than one
year duration can be counted provided
(a) the adhoc service was of more than one
year duration;
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(b) the incumbent was appointed on the
recommendation of duly constituted Selection
Committee, and
(c) the incumbent was selected to the
permanent post in continuation to the adhoc
service, without any break."
17. From the bare reading of the afore-stated
provisions contained in the UGC Regulations it
clearly transpires that the career advancement by
way of Senior Scale could be granted to the
lecture having minimum length of four years for
those with Ph.D and of five years for those with
M.Phil and six years for others at the level of
lecturer and the Selection Grade could be granted
to the lecturer (Senior Scale) having minimum
length of service of five years. For the
eligibility of Senior Scale, it has been further
provided that the lecturer will be eligible for
placement in the Senior Scale through a procedure
of selection, if she/he has completed requisite
years of service after regular appointment, and
subject to the other conditions. The Selection
Grade could be granted to the lecturers only if
they fulfill the criteria of eligibility as
contained in the afore-stated regulation
No.2.3.0. The picture that emerges from the said
Regulations is that the lecturer will be eligible
for placement in Senior Scale only after the
completion of requisite years of service after
regular appointment, and as such his adhoc
service could not be taken into consideration for
his placement in Senior Scale/Selection Grade,
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except as provided in the relevant Regulation
8.6.0 for counting past services. As per
Regulation 8.0.0 read with 8.6.0, the adhoc
service as lecturer could be counted for Senior
Scale/Selection Grade, only if the adhoc service
was for more than one year duration, the
incumbent was appointed on the recommendation of
the duly constituted Selection Committee and he
was selected to the permanent post in
continuation to the adhoc services without any
break.
18. Though it is sought to be criticized by the
learned Sr. Counsels for the petitioners that the
subsequent appointees should not have been
granted Senior Scale and Selection Grade as per
the Government Resolution dated 22.12.2014 and
Office Order dated 10.8.2015, the same being in
utter disregard of the UGC Regulations and also
of the legal position set out by the Supreme
Court in case of State of Haryana Vs. Haryana
Veterinary & Ahts Association and Anr. (supra)
and in case of State of State of Punjab and Ors.
Vs. Ishar Singh and Ors. (supra), the petitioners
have not chosen either to challenge the said
Government Resolutions and the Office Order, or
to challenge the action of the respondents in
granting the Senior Scale and Selection Grade to
the said junior lecturers. That is the reason why
they have not even chosen to implead them as
party respondents in the present petitions.
Hence, in absence of any challenge to the said
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Government Resolutions and without joining the
concerned subsequent appointees, who are the
beneficiaries of the said Government Resolutions,
as the party respondents, the Court refrains
itself from expressing any opinion on the
validity of the said Government Resolutions on
the touchstone of Articles 14 and 16 of the
Constitution of India and on the propriety of
action of the respondents in granting the Senior
Scale and Selection Grade to the subsequent
appointees pursuant to the said Government
Resolutions.
19. However, since the learned Counsels for the
petitioners have invoked the principle of "equal
pay for equal work", the Court shall have to
examine as to whether the petitioners and the
subsequent appointees stand on equal footings or
not, or whether classification of the subsequent
appointees made by counting their past services
is based on intelligible differentia or not. It
is true that the Supreme Court in case of State
of Haryana Vs. Haryana Veterinary & Ahts
Association and Anr. (supra) has held that the
services rendered on the basis of the adhoc
appointment made dehors the recruitment rules,
although without interruption followed by regular
appointment on selection by PSC is not
includible. It is also true that in case of
State of Punjab and Ors. Vs. Ishar Singh and
Ors. (supra) it is held that adhoc services
rendered by the employees could not be included
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for the purpose of giving higher scale of pay
under the proficiency set-up scheme for seniority
etc. However, so far as the facts of present
cases are concerned, as stated herein above, the
UGC Regulations, more particularly Regulation
No.8.0.0 provides for counting of past services
for placement of lecturers in Senior
Scale/Selection Grade, subject to the conditions
mentioned therein. It is pertinent to note that
it is not the case of the petitioners that the
said subsequent appointees i.e. the lecturers
junior to the petitioners, whose past services on
adhoc basis have been counted for the purpose of
granting Senior Scale/Selection Grade as per the
said Government Resolution were not fulfilling
the conditions as contained in the said
Resolutions. The said subsequent appointees,
therefore, appear to have been treated as a
separate class by the respondents for the purpose
of considering their past adhoc services, as
permissible under the UGC Regulations. Hence, it
could not be said that such classification is
discriminatory or is not based on intelligible
differentia. Even otherwise, as stated earlier,
in absence of any challenge to the said
Government Resolution or the action of the
respondents in treating them as a separate class,
it could not be said that such classification is
arbitrary, illegal or unreasonable. The
petitioners could not be permitted only to
criticize such action of the respondent
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authorities, and not to seek any further relief
in this regard.
20. So far as the principle "equal pay for equal
work" is concerned, it is settled legal position
that the said principle is not a fundamental
right, but is a constitutional goal. It is
dependent on various factors. Parity can not be
claimed merely on the basis of category of posts
or nature of duties and functions attached to the
posts. As held by the Supreme Court in case of
Supreme Court Employees' Welfare Association Vs.
Union of India and Anr., reported in (1989) 4
SCC 187, so long as it is not a case of
discrimination under Article 14 of the
Constitution, the abstract doctrine of 'equal pay
for equal work', as envisaged by Article 39(d)
of the Constitution, has no manner of
application, nor is it enforceable in view of
Article 37 of the Constitution. The relevant
paragraph 38 may be reproduced as under:-
"38. It follows from the above
decisions that although the doctrine of
'equal pay for equal work' does not come
within Article 14 of the Constitution as an
abstract doctrine, but if any classification
is made relating to the payscales and such
classification is unreasonable and/or if
unequal pay is based on no classification,
then Article 14 wi11 at once be attracted
and such classification should be set at
naught and equal pay may be directed to be
given for equal work. In other words, where
unequal pay has brought about a
discrimination within the meaning of Article
14 of the Constitution, it will be a case
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of 'equal pay for equal work', as envisaged
by Article 14 of the Constitution. If the
classification is proper and reasonable and
has a nexus to the object sought to be
achieved, the doctrine of 'equal pay for
equal work' will not have any application
even though the persons doing the same work
are not getting the same pay. In short, so
long as it is not a case of discrimination
under Article 14 of the Constitution, the
abstract doctrine of 'equal pay for equal
work', as envisaged by Article 39(d) of the
Constitution, has no manner of application,
nor is it enforceable in view of Article
37 of the Constitution. ..."
21. The said ratio has been followed in number of
subsequent cases. In case of State of State of
West Bengal and Anr. Vs. West Bengal Minimum
Wages Inspectors Association and Ors., reported
in (2010) 5 SCC 225, the Supreme Court reiterated
as under:-
"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 matters 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 vide State of
U.P. Vs. Ministerial Karamchari Sangh,
(1998) 1 SCC 422; Associate Bank Officers'
Association Vs State Bank of India, (1998) 1
SCC 428; State of Haryana & Anr. Vs. Haryana
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Civil Secretariat Personal Staff
Association, (2002) 6 SCC 72; State of
Haryana Vs. Tilak Raj (2003) 6 SCC 123; S.S.
Chandra v. State of Jharkhand [2007 (8) SCC
299]; Uttar Pradesh State Electricity Board
v. Aziz Ahmad [2009 (2) SCC 606]."
21. At this juncture, it would be also relevant to
reproduce the ratio of decision in case of State
of U. P. & Ors. Vs. J. P. Chaurasia & Ors.,
reported in (1989) 1 SCC 121, in which it has
been held inter alia in paragraph 29 as under:-
"29. ... Article l4 permits reasonable
classification founded on different basis.
It is now well established that the
classification can be based on some
qualities or characteristics of persons
grouped together and not in others who are
left out. Those qualities or
charcteristics must, of course, have a
reasonable relation to the object sought
to be achieved. In service matters, merit
or experience could be theproper basis
for classification to promote efficiency in
administration. He or she learns also by
experience as much as by other means. It
cannot be denied that the quality of work
performed by persons of longer experience
is superior than the work of newcomers.
Even in Randhir Singh's case, this
principle has been recognised. O. Chinnappa
Reddy, J. observed that the
classification of officers into two
grades with different scales of pay
based either on academic qualification
or experienceon length of service is
sustainable. Apart from that, higher pay
scale to avoid stagnation or resultant
frustration for lack of promotional
avenues is very common in career service.
There is selection grade for District
Judges. There is senior time scale in
Indian Administrative Service. There is
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super time scale in other like services.
The entitlement to these higher pay
scales depends upon senioritycummerit
or meritcumseniority. The
differentiation so made in the same cadre
will not amount to discrimination. The
classification based on experience is a
reasonable classification. It has a
rational nexus with the object thereof. To
hold otherwise, it would be detrimental
to the interest of the service itself."
22. In the light of afore-stated legal position, if
the facts of the present case are appreciated, it
clearly emerges that the petitioners have neither
prayed to set aside the action of the respondents
on the ground that the petitioners are being
discriminated against the persons similarly
situated, nor have they alleged that the
classification of the subsequent appointees made
on the basis of the Government Resolution dated
27.8.2001 is unreasonable, irrational, or
illegal. Their only prayer in the petition is to
direct the respondents to remove the anomaly
created by the said Government Resolution, and
grant them the same pay as being paid to their
juniors. Therefore, if the respondent
authorities have treated the said concerned
lecturers as a separate class considering their
past adhoc services for the purpose of granting
them Senior Scale and Selection Grade by issuing
the Government Resolution and if the same has
remained unchallenged, the petitioners could not
be permitted to invoke the abstract doctrine of
"equal pay for equal work" and claim the Senior
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Scale or Selection Grade as granted to their
juniors. The said principle would apply to the
cases of unequal scales of pay, based on no
classification or irrational classification,
which is not the case in the instant petitions.
23. Lastly, pressing into service Rule 21 of the
GCSR, the petitioners have claimed that their pay
should be stepped up to the figure equal to the
pay as fixed for their junior lecturers. The
learned Sr. Advocate Mr.Shelat for the
petitioners, while dispelling the submission of
the learned AGP Ms. Vishen that the said Rule is
applicable only in case of the promotion to the
higher post, has drawn the attention of the Court
to various provisions contained in the UGC
Regulations and the Government Resolutions issued
by the State Government to submit that the Career
Advancement Scheme was being treated as the
promotion, and therefore, the principle imbibed
in Rule 21 with regard to stepping up of pay
would be applicable to the case of the
petitioners also.
24. It may be noted that the Gujarat Civil
Services (Pay) Rules 2002 are applicable to all
the members of services and holders of posts
whose conditions of service, the Government of
Gujarat is competent to prescribe. In order to
appreciate the rival contentions raised by the
learned Advocates for the parties, it would be
beneficial to reproduce Rule 21 of the GCSR for
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ready reference:-
"21. Stepping up of a pay of a Government
employee on the basis of the pay of his
junior:
(1) Where on regulating initial pay of a
Government employee under above rules11,
13, 15 to 17 & 19 or on his appointment to a
higher post if his pay is fixed at a lower
rate of pay in that cadre than another
Government employee junior to him in the
lower grade but promoted or appointed
subsequently in such another identical
cadre; the pay of the senior Government
employee on the higher post shall be stepped
up to the figure equal to the pay as fixed
for the junior Government employee in that
higher post with effect from the date of
promotion of the junior Government employee
and it shall be subject to the following
conditions viz:
(i) both, the junior and the
senior Government employees belong to
one and the same cadre and the posts to
which they have been promoted or
appointed, shall be identical and in the
same cadre and in the same line of
promotion;
(ii) the timescales of pay of the
lower posts held by the senior and the
junior Government employees shall be
identical;
(iii) the time scales of the higher posts
to which the Government employees are
promoted or appointed shall be
identical;
(iv) the senior Government employee
had he not been appointed to the higher
post earlier than his junior, he would
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have been eligible to draw pay at a
stage not lower than that admissible to
his junior in the lower post than that
admissible to his junior in the lower
post immediately prior to the
appointment of the junior Government
employee to the higher post;
(v) the anomaly so caused must be
the direct result of the application of
this rule. For example, if even in the
lower post the junior Government
employee draws from time to time a
higher rate of pay than the senior by
virtue of fixation of pay under the
normal rules or by grant of advance
increment(s) for any reason, these
provisions shall not be applicable to
step up the pay of the senior Government
employee.
(vi) the pay of the senior
Government employee so increased due to
stepping up of pay shall not be reduced
on reversion of the junior Government
employee nor shall it be increased again
with reference to the pay of the same
officer.
(2) After the refixation of pay of the
senior Government employee with reference to
the pay of his junior, the next increment
shall occur to him only after he has
rendered the qualifying service which is
necessary for drawing such increment from
the stage at which his pay had been
refixed."
25. From the bare reading of the said Rule 21 it
appears that the said Rule is applicable where on
regulating the initial pay of a Government
employee under the Rules mentioned therein, or on
his appointment to a higher post, if his pay is
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fixed at a lower rate of pay in that cadre than
another Government employee junior to him in the
lower grade but promoted or appointed
subsequently in such another identical cadre. In
this regard, though it is sought to be submitted
by Ms.Vishen that the promotion aspect being
absent in the instant cases, the said Rule could
not be made applicable, the said submission can
not be accepted.
26. It is true that in the Regulations of 2000
as amended from time to time, the grant of Senior
Scale and Selection Grade under the CAS has not
been specifically stated to be a promotional
channel for the post of lecturer (which post now
appears to have been re-designated as the post of
Assistant Professor in the Regulations of 2010),
however, as per Regulation No.7.0.0 of the
Regulations of 2000, also a lecturer was eligible
for placement in a Senior Scale and Selection
Grade after going through a procedure of
selection and subject to the conditions of
achieving academic performance indicators, based
on performance based appraisal system. The
procedure for selection for the entitlement to
the higher grade was akin to the procedure for
promotion to the post of Reader or Professor. It
is needless to say that the promotional posts
being few in number, the UGC has provided
promotional avenue by way of Career Advancement
Scheme. The said object has been made very clear
in the Regulations of 2010.
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27. From the various provisions contained in the UGC
Regulations 2010, it clearly emerges that the CAS
has been treated as an avenue for promotion only.
Regulation No.1.3 states inter alia that in the
event any candidate becomes eligible for
promotion under Career Advancement Scheme in
terms of these Regulations on or after 31st
December 2008, the promotion of such a candidate
shall be governed by the provisions of these
Regulations. Regulation No.6.3.0 states inter
alia that in order to remedy the difficulties of
collecting retrospective information and to
facilitate the implementation of these
regulations from 31.12.2008 in the CAS promotion,
the API based PBAS will be progressively and
prospectively rolled out. Regulation No.6.3.1
states inter alia that a teacher who wishes to be
considered for promotion under CAS may submit in
writing to the university/college, with three
months in advance of the due date, that he/she
fulfills all qualifications under CAS.
Regulation No.6.3.4 states that CAS promotions
from a lower grade to a higher grade of Assistant
Professor shall be conducted by a "Screening cum
Evaluation Committee" adhering to the criteria
laid out as API score in PBAS in the Tables of
Appendix-iii. In Regulation No.6.4.0 the stages
of promotion under the CAS of the incumbent have
been stated. Regulation No.10.0 provides for
counting of past services for direct recruitment
and promotion under CAS. Even in the latest
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Government Resolution dated 22.12.2014, the State
Government has instructed to delete the word
'promotion' from CAS, meaning thereby the State
Government itself had treated the CAS as
promotion.
28. Hence, in view of the afore-stated provisions
contained in the Regulations of 2010 and in the
Government Resolutions, it does not lie in the mouth
of the respondent authorities to say that the CAS is
not a promotion. The CAS having been treated as
promotion by the respondent authorities, the
submission of Ms. Vishen that Rule 21 is not
applicable to the cases where higher pay is granted
in lieu of stagnation in promotion, can not be
accepted. The principle of stepping up of pay as
imbibed in Rule 21 of the GCSR is required to be
made applicable to the cases of the petitioners. It
is not disputed that the petitioners and the
subsequent appointees belong to the one and the same
cadre and they have been granted the benefit of CAS
in the same cadre. Their time scales of pay as
lecturers were identical, and their time scales of
Senior Scale and Selection Grade are also identical.
It is pertinent to note that CAS is granted in lieu
of promotions. If the juniors get higher pay than
the seniors, and the seniors have no promotional
avenue, their seniority becomes insignificant. In
that case, the very purpose of making regular
appointment through GPSC after following the due
recruitment process would be frustrated. This could
have adverse demoralizing effect on the working of
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seniors, who are seniors only on paper. To avoid
such a situation also their pay deserves to be
stepped up to the pay equal to their juniors. The
anomaly, therefore, created on the issuance of the
Government Resolution dated 22.12.2014 deserves to
be removed by the respondents by granting the
petitioners Senior Scale and Selection Grade from
the date their juniors were granted. It is
submitted by the learned Sr. Advocate Mr.Shelat that
though all the petitioners have been found eligible
and though their names have been recommended by the
Selection Committee for granting them the Selection,
the petitioners have not been granted the benefit of
Selection Grade till this date, whereas the
subsequent appointees have been granted all benefits
with retrospective effect. Such a discriminatory
treatment meted out to the petitioners at the
instance of the respondents deserves to be strongly
deprecated.
29. In the aforesaid premises, the respondents are
directed to remove the anomaly in the pay of the
petitioners qua their juniors, by stepping up their
pay to the figure equal to the pay as fixed for
their respective juniors, and grant the petitioners
the benefits of Senior Scale and Selection Grade
with effect from the dates when their juniors were
granted the said benefits. The respondents shall
comply with the directions forthwith and not later
than four weeks from today. The petitions stand
allowed accordingly.
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(BELA M. TRIVEDI, J.)
vinod
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C/SCA/3210/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3210 of 2016
[On note for speaking to minutes of order dated 19/04/2017 in
C/SCA/3210/2016 ]
With
SPECIAL CIVIL APPLICATION NO. 3211 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3212 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3213 of 2016
With
SPECIAL CIVIL APPLICATION NO. 4486 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 4501 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3214 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5118 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 5125 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5386 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 5394 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6172 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6609 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6895 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5966 of 2016
With
SPECIAL CIVIL APPLICATION NO. 7629 of 2016
With
Page 1 of 4
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C/SCA/3210/2016 ORDER
SPECIAL CIVIL APPLICATION NO. 6886 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5962 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5964 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6716 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6791 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6888 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6889 of 2016
With
SPECIAL CIVIL APPLICATION NO. 11912 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 11926 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14330 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14356 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14329 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14355 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14926 of 2016
With
SPECIAL CIVIL APPLICATION NO. 15579 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 15588 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16271 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 16282 of 2016
With
SPECIAL CIVIL APPLICATION NO. 20496 of 2016
With
Page 2 of 4
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C/SCA/3210/2016 ORDER
SPECIAL CIVIL APPLICATION NO. 16061 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16639 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 16661 of 2016
With
SPECIAL CIVIL APPLICATION NO. 6553 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 6557 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2569 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2572 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2574 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2575 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2576 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2921 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2922 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2923 of 2017
==========================================================
HASMUKHBHAI JIVABHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3
MR MJ MEHTA, ADVOCATE for the Respondent(s) No. 4
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 27/04/2017
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C/SCA/3210/2016 ORDER
ORAL ORDER BELOW SPEAKING TO MINUTES
In para No.27 of the judgment dated 19.04.2007 passed in Special Civil Application No.3210 of 2016 and other allied matters, the date of Government Resolution be corrected as 06.03.2017 instead of 22.12.2014.
Accordingly, the note for speaking to minutes stands disposed of.
(BELA M. TRIVEDI, J.) Tuvar Page 4 of 4 HC-NIC Page 37 of 37 Created On Fri Apr 28 01:21:23 IST 2017 37 of 37