ABDULSULTAN A. MANJI v. STATE — 1999 DIGILAW 663 (GUJ)

M. S. SHAH, J. ( 1 ) THROUGH this petition under Article 226 of the Constitution, retired Principals of law colleges in the State of Gujarat in the evening of their life, have been knocking the doors of this Court for the last eight years for claiming the benefits of the pension scheme. ( 2 ) THE petition was filed by seven retired Principals of Law Colleges. One of them (petitioner No. 1) has already expired during pendency of the petition, and his heirs have not come forward for being brought on record, since the Court is informed, they have migrated to another country. The petition, is therefore, pursued by the remaining six petitioners whose service particulars are as under :- ( 21 ) WHETHER the petition deserves to be dismissed on the ground of delay. ( 22 ) AS regards the preliminary objection raised by the learned A. G. P. , about delay in filing the petition, it is pointed out on behalf of the petitioners that the petitioners through their Association called "the Gujarat State Law teachers Association" were agitating the issue before the State Government through a number of representations submitted orally as well as in writing to the State Government and the petitioners were assured that due consideration will be given to their representations. Copies of such representations made on 14-9-1985 (Pg. 41), 29-13-1989 (Pg. 47) and 14-8-1991 (Pg. 48) are on the record of the petition. However, the State Government did not relent and finally refused to accede the benefits to the petitioners and other law teachers by their reply dated 8-8-1991 (Annexure "e" Pg. 52) rejecting the option form exercised by petitioner No. 1 under the Government Resolution dated 25-4-1991. ( 23 ) NOW, it cannot be gainsaid that though there is some delay in filing the petition, the petitioners and their Association were agitating the issue time and again. It was when the Government did not remove the discrimination even while issuing the Resolution dated 25-4-1991 extending the benefit to a larger class of teachers who retired between 1-1-1973 and 31-3-1982 but did not accept the representations made by the full-time law teachers that the present petition came to be filed in October, 1991. It was when the Government did not remove the discrimination even while issuing the Resolution dated 25-4-1991 extending the benefit to a larger class of teachers who retired between 1-1-1973 and 31-3-1982 but did not accept the representations made by the full-time law teachers that the present petition came to be filed in October, 1991. In view of the fact that the discrimination meted out to the teachers in private affiliated law colleges has been found to be unjustified by the Apex Court as well as by this Court, and therefore, the petitioners have a good case on merits, this Court would not be inclined to dismiss the petition on the ground of delay alone, more particularly when that aspect can be taken care of while moulding the reliefs by not awarding any interest on the arrears of pension till the date of filing the petition. ( 24 ) IN this connection, this Court would refer to the following observations made by their Lordships of the Supreme Court in case of R. S. Deodhar v. State of Maharashtra, AIR 1974 SC 259 :"the rule which says that a Court may not inquire into belated or stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art, 16 is itself a fundamental right guaranteed under art. 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like. 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like. "in the instant case, granting the reliefs to the petitioners would not take away the rights which have accrued to others and the discriminatory treatment meted out to the full-time teachers of private affiliated law colleges cannot be allowed to be perpetuated on the jejune ground of laches, delay or the like, but, as stated above, this would be one of the relevant factors to be taken into account while moulding the reliefs. Law Colleges Non-aided institutions prior to 1988-89 : ( 25 ) THE next question is whether it will make any difference to the petitioners claim on merits that private affiliated law colleges were not aided institutions prior to 1988-89. The petitioners grievance is about the discrimination against teachers of law colleges in the Government Resolution dated 15-10- 1994 (Annexure "b" ). The relevant portion of the said Government Resolution reads as under :-"the question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the University under Education Department and in affiliated and aided non-government colleges in Gujarat was under consideration of the Government for some time past. After careful consideration, government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Governments Servants under the revised pension Rules. 1950 contained in the Appendix XIV-C to B. C. S. R. Rules, volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution Finance Department No. FPS-1071-J dated 1-1-1972 as amended from time to time should be made applicable to the full-time teaching staff of the Universities under the Education Department and in affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in this state with effect from 1-4-1982. 1. a) for the purpose of this scheme :- (1) University means Universities under Education Department established by the Acts. (2) A non-Government College includes non-Government affiliated Arts, science, Commerce and B. Ed. Colleges receiving grant-in-aid and managed by the private body and affiliated with the Universities by the competent authority. 1. a) for the purpose of this scheme :- (1) University means Universities under Education Department established by the Acts. (2) A non-Government College includes non-Government affiliated Arts, science, Commerce and B. Ed. Colleges receiving grant-in-aid and managed by the private body and affiliated with the Universities by the competent authority. "the learned A. G. P. , strenuously submitted that since the law colleges were not aided institutions, insertion of the words "law colleges" in the Government resolution dated 15-10-1984 will not be of any avail to the petitioners or other teachers of such private affiliated law colleges. This contention is certainly prima facie attractive if one were to frame the question to be considered as :"whether law colleges should be included within the scope of the Government resolution dated 15-10-1984". ( 26 ) THE petitioners have, however, raised a wider question whether there was any justification in not giving financial aid to the private affiliated law colleges prior to 1988-89. The plea of discrimination is not aimed merely at non-inclusion of the law colleges within the scope of the Government Resolution dated 15-10-1984, but the gravamen of the charge of discrimination is against the discriminatory treatment meted out to the teachers of private affiliated law colleges by not giving aid to such law colleges. This Court, therefore, rejects the contention urged on behalf of the State Government and holds that the petition is not confined to the narrow question whether law colleges were wrongly excluded from the scope of the Government Resolution dated 15-10-1984, but the controversy is on the wider canvass whether the teachers of law colleges were wrongly excluded from the benefit of payment of grant to the law colleges for payment of salaries and pension to full-time teachers in such law colleges. In this connection, the learned Counsel for the petitioners has rightly pointed out that no justification is given for treating the private affiliated law colleges on a different footing then the law colleges run by the state Government or by Universities where they are discharging the same function. There is also no justification for discrimination against full-time teachers of law colleges vis-a-vis the full-time teachers of Arts, Science, commerce and Education colleges except that law colleges were alleged to be profit-making institutions with surplus income and part-time teaching staff. There is also no justification for discrimination against full-time teachers of law colleges vis-a-vis the full-time teachers of Arts, Science, commerce and Education colleges except that law colleges were alleged to be profit-making institutions with surplus income and part-time teaching staff. This assumption made by the Paul Committee in 1977 could not have been accepted as valid for all time to come, especially when the petitioners and the Gujarat law Teachers Association were clamouring for grant-in-aid to law colleges for payment of salary and pension to full-time teachers since 1985 onwards, so also, there is no justification for discrimination vis-a-vis the full-time teachers of other professional colleges like Medical and Engineering Colleges. In case of State of Maharashtra v. Manubhai P. Vashi, (supra), the Honble supreme Court has in unmistakable terms held as under :-"these aspects necessarily flowing from Arts. 21 and 39a of the Constitution were totally lost sight of by the Government when it denied the grant-in-aid to the recognized private law colleges as was afforded to other faculties. We would add that the State had abdicated the duty enjoined on it by the relevant provisions of the Constitution aforesaid. In this perspective, we hold that Art. 21 read with Art. 39a of the Constitution, mandates or casts a duty on the state to afford grant-in-aid to recognized private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear. "it has, therefore, to be held that the discriminatory treatment meted out to the full-time professors of private affiliated law colleges was discriminatory and violative of the petitioners fundamental rights under Arts. 14 and 16 of the Constitution. Retrospective Effect - Will Kasturi kill the law teachers claim : ( 27 ) MS. Manisha Lavkumar, learned A. G. P. , would, still however, urge that the petitioners are seeking retrospective effect for operation of the government Resolution dated 5-9-1997 and that when the said resolution was issued and the effect thereof was given from 1996-97 in view of the interim directions of the Division Bench of this Court, the petitioners did not belong to the class of pensioners. Hence, giving the petitioners the benefit of the pension scheme with effect from 1982, and thereafter, would amount to giving retrospective effect to the Government Resolution dated 5-9-1997. Strong reliance has been placed on the decision of the Apex Court in the case of V. Kasturi v. Managing Director, State Bank of India, (supra) wherein the Apex Court enunciated the following principles :- "category I : ( 28 ) AT first blush the contention of the learned A. G. P. , may deserve acceptance and the petition may prima facie be liable to be dismissed in view of the above submission. However, this Court is of the view that the petitioners case is different and it is similar to the case of the petitioners in Dhanraj v. State of J. and K. , 1998 (4) SCC 30 , where the facts of the said case, the reasoning given by the Apex Court in the said case and the distinguishing features noticed by the Apex Court are to be found in para 17 of the judgment in the case of V. Kasturi v. M. D. State Bank of India (supra ). The same are reproduced hereunder :-"17. Learned Counsel for the appellant then invited out attention to a decision of this Court in Dhanraj v. State of J. and K. (supra ). In the said case the question for consideration before the Bench of two learned Judges of this Court was as to whether the employee of erstwhile State of Jammu and Kashmir who were later on absorbed by Jammu and Kashmir State Road Transport Corporation were entitled to pensionary benefits in terms of G. O. dated 3-10-1986 when they retired from the service of the Corporation prior to 9-6-1981. Relying on the strength of the said Government Order it was held by this Court that all erstwhile State employees would form one class and were entitled to get the benefit of the Govt. Order dated 3-10-1986 even though they might have retired prior to 9-6-1981 which was the date on which Art. 177 of J. and K. Civil Services Regulations was amended by adding 3rd proviso to it. Order dated 3-10-1986 even though they might have retired prior to 9-6-1981 which was the date on which Art. 177 of J. and K. Civil Services Regulations was amended by adding 3rd proviso to it. The aforesaid decision is rendered in the peculiar circumstances of its own case and is based on the clear wordings of the Government Order dated 3-10-1986 by which it was mandated to give uniform treatment to all the retirees from Corporation who were earlier State Government servants. They formed one and same class. It is in the light of the aforesaid fact situation examined by this Court in that Judgment that we have to appreciate the reasoning found in para 14 of the report on which strong reliance was placed by learned Counsel for the appellant. It has been observed therein that even otherwise there was no justifiable criteria for the State Government to draw the line between those who retired earlier and those who retired after 9-6-1981. Both such set of employees were equally placed in the same Undertaking/corporation temporary in character and all having served in the organization for more than 20 years. These observations are to be appreciated in the light of the facts examined by this Court in this decision. The State of Jammu and Kashmir was dealing with the very same class of employees who were all ex-employees of the State Government who had subsequently been absorbed by the Corporation, and thereafter, had retired. As all of them formed the same class, the same treatment was required to be given to them in connection with the pensionary benefits made available by the State Government. " (emphasis supplied) it would be seen from the aforesaid observations that if the petitioners make out a case that the petitioners were treated unequally and that they were wrongfully left out of the class of pensioners who were similarly situate as the petitioners, Kasturi case would not come in the way of granting them the declaration prayed for and the consequential reliefs as the case of Dhanraj (Supra) is not overruled or held to be not good law, but is merely distinguished by the Apex Court in V. Kasturi (supra ). ( 29 ) APPLYING the aforesaid principles to the facts of the present case, it is clear that what the petitioners are challenging is discrimination against full-time teachers of private affiliated law colleges vis-a-vis the full-time teachers of Arts, Science and Commerce colleges as well as full-time teachers of professional colleges. As already held above, once the discrimination is shown to be unjustified and unjustifiable and violative of the petitioners fundamental rights under Arts. 14 and 16 of the Constitution and once it is held that the full-time teachers of private affiliated law colleges are required to be treated on the same footing as the full-time teachers of Arts, Science, Commerce and education colleges, the petitioners claim cannot be defeated merely because the plea of such discrimination came to be accepted subsequently and the decision was subsequently taken to extend the similar treatment to full-time teachers of such law colleges. Subsequent admission of the mistake merely confirms the justification of the petitioners claim. It cannot thus be defeated on the ground that the petitioners are claiming retrospective effect. The crucial question in such cases would be whether the grievance was made or the petition was filed after the Government sought to remove the discrimination or whether the grievance was made and the petition was filed prior to removal of the discrimination. In the facts of the case, since the petitioners were making representations since 1985 onwards and the petition was also filed in the year 1991, subsequent issuance of the resolution in the year 1997 pursuant to the interim orders of this Court would not denude the petitioners of their legitimate rights flowing from the declaration being made by this Court that full-time teachers of private affiliated law colleges were being meted out discriminatory treatment in the matter of grant for payment of salary and pension in violation of their fundamental rights under Arts. 14 and 16 of the Constitution. 14 and 16 of the Constitution. Reliefs to be Granted : ( 30 ) APROPOS the apprehension voiced by the learned A. G. P. , about opening pandoras Box, Mr Girish Patel pointed out that apart from the fact that there are six petitioners who are seeking the benefit of the pension scheme, there would be hardly ten to fifteen other retired full time teachers in private affiliated law colleges who would be entitled to get the benefit of the judgment in case this petition is allowed. Moreover, the Government Resolutions dated 15-10-1984 (Annexure "b") and 25-4-1991 (Annexure "d"), with which this petition is concerned, only pertain to teachers and not to non-teaching staff. Hence, the Government need not be allowed to defeat the petitioners just claim on the ground of unfounded apprehensions. It appears to this Court that these aspects are quite significant and sufficient to allay the apprehensions voiced by the learned A. G. P. This Court would certainly consider the same while allowing the petition and moulding the reliefs to be granted to the petitioners and other similarly situate retired full-time teachers of law colleges by confining the benefit of this judgment to those who retired on or after 1-4-1982 which was the original date from which the government Resolution dated 15-10-1984 (Annexure "b") was given effect and this Court would not stretch the date back to 1-1-1973 as was done by the government Resolution dated 25-4-1991 (Annexure "d" ). ( 31 ) THERE is one more aspect which is required to be examined while granting the reliefs. Under the ordinance framed by the respective Universities, teachers who were appointed on or before 1-4-1982 and had retired on or after 1-4-1982 shall be entitled to petitionary benefits given by the State government to its employees from time to time. For this purpose. Clause 17 of Ordinance 148 of the South Gujarat University reads as under :"17. Pension a teacher who has been appointed on or before 1-4-1982 and has retired on or after 1-4-1982 and prior to the date of issuance of Education Department government Resolution No. NGC/misc-1582/9505/84/kh dated 25-4-1991 shall be entitled to pensionary benefits given by the State Government to its employees from time to time. Pension a teacher who has been appointed on or before 1-4-1982 and has retired on or after 1-4-1982 and prior to the date of issuance of Education Department government Resolution No. NGC/misc-1582/9505/84/kh dated 25-4-1991 shall be entitled to pensionary benefits given by the State Government to its employees from time to time. A teacher who has been appointed on or after 1st April, 1982 shall automatically be governed by the pension scheme as per Government Resolution quoted above, such teachers shall not be allowed to opt for Contributory Provident fund Scheme. " ( 32 ) ADMITTEDLY, all the petitioners were appointed as teachers in affiliated law colleges prior to 1-4-1982 and petitioner Nos. 2 to 7 retired after 1-4-1982 and prior to 25-4-1991. Accordingly, it is clear that the petitioners were entitled to pensionary benefits given by the State Government to its employees from time to time and the petitioners shall be governed by the pension scheme as per the Government Resolution quoted above, but as all the petitioners were earlier compelled to be members of the contributory provident fund scheme and had no other option but to become the members of the contributory provident fund scheme, and therefore, while giving them the benefits of the pension scheme, the amounts paid to them as employers contribution to the Provident fund will have to be deducted. It appears that the law colleges had made such contributions to the contributory provident fund scheme apart from the contributions from the law teachers themselves. Hence, it appears to the Court that the contributions made by the managements of the private affiliated law colleges should be required to be treated as commuted pension and that part of the contributory provident fund which is in excess of the commutable portion of the pension shall have to be adjusted against the arrears of pension which would be payable by the State Government to the petitioners and other law teachers who retired on or after 1-4-1982. ( 33 ) THE petition is partly allowed to the following extent :a (i) The Government Resolution dated 15-10-1984 (Annexure "b"), insofar as the same did not include the full-time teaching staff of non-aided affiliated non-government law colleges in the State for the purpose of pensionary benefits was discriminatory, arbitrary and violative of funmdamental rights of the petitioners under Art. 14 and 16 of the Constitution. Respondent No. 1 is hereby directed to extend the benefits of the said resolution to full-time teaching staff of the affiliated non-government law colleges in the State who retired on or after 1-4-1982, including petitioner nos. 2 to 7, notwithstanding the fact that such law colleges were not aided institutions prior to 1996-97. (ii) The petitioners and other members of the full-time teaching staff of such law colleges who retired on or after 1-4-1982 shall have the option of accepting the pension scheme as applicable to the government employees. While working out the amounts payable under the said scheme, the employers contributions to the law teachers provident fund shall be adjusted against the commutable portion of the pension. The balance amount, if any, payable by the law teachers towards refund of such contributory provident fund shall be adjusted against the arrears of pension payable to the petitioners. (iii) For making the above calculations, interest on the balance amount of contributory provident fund (after deducting the amount adjusted against the commuted pension) shall be calculated at the rate of 9% p. a. from the date of retirement till the amount is adjusted against the arrears of pension, but no interest shall be payable on the amount of arrears of pension payable to the retired law teachers by virtue of this judgment for the period from the date of retirement till 31-10-1991. (iv) The amount of arrears of pension payable to law teachers who retired on or after 1-4-1982 shall be paid with interest at the rate of 9% p. a. from 1-11-1991 or the date of retirement, whichever is later, till the date of payment, or till the adjustment against refund of contributory provident fund as stated above. B For the purpose of carrying out the above directions, the respondents shall, on their own or through the respective law colleges, work out the amounts payable to the petitioners and other full-time teachers of non-government law colleges who retired on or after 1-4-1982 within three months from the date of receipt of the writ of this Court or a certified copy of this judgment, whichever is earlier, and thereafter, the state Government shall make the payments of the amounts so worked out to the concerned retired teachers within six months from the date of receipt of the writ of this Court or a certified copy of this judgment, whichever is earlier. If the directions given in this judgment are not complied with within the aforesaid time-limit, the arrears of pension shall carry interest at the rate of 12% p. a. from 1-11-1999. Rule is made absolute to the aforesaid extent with no order as to costs. .