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Gujarat High Court · body

2011 DIGILAW 564 (GUJ)

State of Gujarat v. H. G. Modi

2011-07-27

JAYANT PATEL, R.M.CHHAYA

body2011
Judgment Jayant Patel, J.—Both the appeals arise from the very judgment of the learned Single Judge, they are being heard together and decided by this common judgment. 2. Letters Patent Appeal No. 1897 of 2007 is directed against the judgment and order dated 05.12.2006 passed by the learned Single Judge of this Court so far as it relates to directing the State authorities to confer the benefits upon the original petitioners-respondents herein for the purpose of continuity of service and retiral benefits and for the notional payment of the salary. Whereas Letters Patent Appeal No. 809 of 2008 has been preferred against the very judgment of the learned Single Judge of this Court so far as it relates to declining the payment of salary for the period after completion of the age of 58 years until 62 years. 3. The relevant facts are that the petitioners were teachers in the Government College and as per the service conditions prevailing then, the age of superannuation was 58 years and they reached the age of superannuation in February, 1999. However, as per the policy of the Government, if any teacher reaches the age of superannuation during the academic year, the extension is to be considered in service until expiry of the academic session and, therefore, they retired from service on 14.6.1999 instead of February,1999. It appears that in the meantime, on 26.5.1995 the Government passed the resolution of enhancing age of superannuation from 58 to 62 years. As per the said resolution, there was revision in the pay scale with effect from 1.1.1996. However, such effect was not given for enhancement of age of retirement and therefore, was to be treated from the date of the resolution but the benefit of the said resolution was not given to the original petitioners and under the circumstances, the original petitioners preferred petition for the relief inter alia directing the respondents to extend the benefit of increasing in the age of superannuation to the teachers of the government colleges and, alternatively, it was prayed to direct the respondent to give the benefit of enhanced age of superannuation at par with the teachers of the Universities/Colleges affiliated to the Universities. 4. 4. The learned Single Judge found that the original petitioners, who are working in the government colleges as teachers and the teachers who are working in the colleges affiliated to the Universities from homogeneous class, and hence it was not open for the government to give separate treatment to its employees working in the Colleges run by the Government. The learned Single Judge therefore found that the action is violative of Articles 14 and 16 of the Constitution and consequently quashed the exercise of power. The learned Single Judge thereafter directed for grant of the benefit to the petitioners for enhanced age of superannuation notionally and, it was further directed to extend the benefit for continuity in service and other retiral benefits, however, for the period during which the original petitioners did not actually work there as teachers, salary was not ordered to be paid. Under the circumstances, the State being aggrieved by the direction for continuity in service whereas the original petitioners being aggrieved by the direction of not to pay salary, both have preferred the respective appeals. 5. We have heard Mr. Neeraj Soni, learned Assistant Government Pleader appearing for the State authorities in both the appeals and Mr. Pranav Raval for the respondent-original Petitioner No. 5 in the appeal preferred by the State and for the appellant in the appeal preferred by the original petitioners. 6. It appears that the questions which are required to be considered in the present appeals are two fold. One is, as to whether the original petitioners who were teachers working in the Government Colleges and the teachers working in the Colleges affiliated to the Universities could be said to be homogeneous class or was it open to the Government to make intelligible differentia for the enhancement of the age of superannuation and the another question is that whether the original petitioners would be entitled to the benefit of the government resolution dated 26.5.1999 for enhancement of the age of superannuation since their service period came to be extended after reaching the age of 58 years until the academic session was over. 7. It is required to be considered that the teachers working in Government Colleges and the teachers working in the Colleges affiliated to the Universities are governed by different service conditions and also the statutory provisions. 7. It is required to be considered that the teachers working in Government Colleges and the teachers working in the Colleges affiliated to the Universities are governed by different service conditions and also the statutory provisions. The teachers who are working in Government Colleges are governed by Bombay Civil Service Rules, Gujarat Civil Service (Discipline & Conduct) Rules, 1971 and Gujarat Civil Service (Conduct) Rules, 1971 and also governed by other rules which may be framed by the government for its employees under Article 309 of the Constitution. Whereas the teachers appointed in the Colleges affiliated to the Universities are governed by the concerned Universities Act and the Ordinance. Not only that but in case of any dispute against dismissal or any other benefit or deprivation of the service condition, the Forum for adjudication for the teachers working in the Colleges affiliated to the University is the Tribunal for Universities and its affiliated Colleges. Whereas such Tribunal will have no jurisdiction in case of the teachers working in the Colleges which are run by the government itself. The services of the teachers working in the Colleges run by the Government are pensionable whereas for the teachers working in the Colleges affiliated to the Universities retiral benefits are different. Even the source of recruitment for their appointment is also different and governed by the separate rules. Under these circumstances, it cannot be said that the teachers working in the Colleges run by the government and the teachers working in the Colleges affiliated to the Universities form the same class or homogeneous class. It is true that in case of D.S. Nakara vs. Union of India, reported in 1983 SC 130, it was held by the Apex Court that the different treatment to the two persons holding identical post is not permissible but the very decision has been subsequently considered by the Apex Court in case of All India Reserve Bank Retired Officers’ Association & Ors. vs. Union of India & Ors., reported in AIR 1992 SC 767 (Para 7), wherein it was observed that if the class is different the basis of the principles laid down in Nakara’s Case would not be applicable. vs. Union of India & Ors., reported in AIR 1992 SC 767 (Para 7), wherein it was observed that if the class is different the basis of the principles laid down in Nakara’s Case would not be applicable. It is also true that it was a case where the Apex Court had to consider the separate cut-off date provided for extending the benefit of pension and the pension scheme but it was held in the said case that the differential treatment accorded to those who retired prior to the specified date and those who retired subsequent thereto have only to meet the test of Article 14 of the Constitution but the same could not be impermissible and ultimately in the said case justification was found and cut-off date as provided was maintained. Therefore, it appears to us that the present case is not governed by the decision of the Supreme Court in the case of D.S. Nakara (Supra). 8. If the original petitioners and the teachers working in the Colleges affiliated to the University were not forming one class or a homogeneous class, it cannot be said that the State Government in the resolution dated 26.5.1999 was required to give the effect for enhancement of the age at par with the teachers working in the Colleges affiliated to the University, that too with the retrospective date. 9. An attempt was made by the learned Counsel for the original petitioners that the HRD Ministry at the Central level as well as AICTE had already forwarded communication for enhancement of the age and it was already enhanced in respect of the teachers working in the College affiliated to the University and thereafter it was implemented by the government for the teachers working in the government colleges and therefore, it was submitted that such an action on the part of the government could also not be said to be justified. It was submitted that when the recommendations were made by the parent body and the benefit was already given to the teachers working in the Colleges affiliated to the Universities, there was no justification to deprive the benefit to the original petitioners who were teachers working in the government colleges. 10. It was submitted that when the recommendations were made by the parent body and the benefit was already given to the teachers working in the Colleges affiliated to the Universities, there was no justification to deprive the benefit to the original petitioners who were teachers working in the government colleges. 10. Even if such contention is considered for sake of examination, it is required to be noted that the recommendations are the recommendations only and it may not operate as alteration in service conditions automatically. The recommendations may carry weightage for the government to act upon it when it is by the parent body at the central level but thereby it cannot be said that no discretion whatsoever is left. Further, if the government has not acted upon the recommendations, one may seek mandamus to consider the recommendations and then to take decision but until the decision is taken, it cannot be said that just because the recommendations are made there is automatic amendment of the service conditions or change in the service conditions even if decision is not taken. Therefore, it is not possible to accept the contention of the learned Counsel for the original petitioners that once the recommendations are made by the parent body the benefits are so conferred accordingly. Under the circumstances, we find that when the original petitioners were forming different class of the teachers working in the government colleges vis-a-vis the class of the teachers working in the Colleges affiliated to the Universities, action for giving effect to the benefit from 26.5.1999 i.e. from the date of the resolution for enhancement could not be said to be violative of Article 14 of the Constitution, more particularly the justification is there in the affidavits filed on behalf of the Government. 11. Another aspect for availing the benefit on account of extension in service should not detain us further. Obvious reason is that it is not even the case of the petitioners that they did not reach of superannuation. 11. Another aspect for availing the benefit on account of extension in service should not detain us further. Obvious reason is that it is not even the case of the petitioners that they did not reach of superannuation. Upon completion of the age of 58 years in February, 1999, if on account of non completion of the academic year the service period is extended such period after reaching age of superannuation is treated as extension in service but such extension in service cannot be read to confer any right for retiral benefit or continuity in service or for any extra benefit therefrom except the salary and the perks to be paid during period of extension. Under the circumstances, when resolution dated 26.5.1999 was passed whereby the age is enhanced from 58 to 62 years the petitioners had already reached the age of superannuation and merely because the resolution came to be passed during the extended period of service, it cannot be said that any benefit would be available to the original petitioners for enhancement of the age of superannuation which in any case is prospective from the date of resolution i.e. after 26.5.1999. 12. In view of the aforesaid, we are unable to agree with the view taken by the learned Single Judge, hence, the Appeal preferred by the State deserves to be allowed and it is hereby allowed and the impugned judgment of the learned Single Judge is quashed and set aside. As the judgment of the learned Single Judge is quashed and set aside and the action of the government is maintained, naturally there will not be a question of paying any salary to the original petitioners and consequently the Appeal preferred by one of the original Petitioner No. 5 would be required to be dismissed and hence dismissed. 13. In view of the above, Letters Patent Appeal No. 1897 of 2007 is allowed. Letters Patent Appeal No. 809 of 2008 is dismissed. Considering the facts and circumstances there shall be no order as to costs.