Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 481 (GUJ)

Shailesh M. Jani v. State of Gujarat

2016-02-29

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition which is filed under Article 226 of the Constitution of India, the petitioner has prayed that decision/order dated 5.11.2003 passed by respondent No. 1 be quashed and set aside and thereby the respondents be directed to give the revised pay scale as provided by UGC from due date as adopted by the State Government in its resolution dated 6.6.1989 and also declare that the petitioner is entitled to get the consequential revisions as effected by consequent G.Rs. dated 27.6.1991, 7.9.1998 and 16.12.2001. The petitioner has also prayed that the respondents be directed to pay the interest. 2. Heard learned advocate Ms. Khyati Hathi for the petitioner and learned AGP Mr. Goutam for the respondents No. 1 and 2 and learned advocate Mr. P.M. Dave for respondent No. 3. 3. Learned advocate for the petitioner submitted that the petitioner had obtained the required academic qualification of M.A./M.Ed. and BLI(Science). The advertisement came to be issued by respondent No. 3 on 25.12.1984 for the post of Librarian. The petitioner submitted an application in pursuance to the said advertisement and after following due procedure, the respondent No. 3 appointed the petitioner on the post of Librarian by order dated 17.8.1985 in the department of Post Graduate Teaching and Research of the University in the pay scale of Rs. 500-900. The petitioner joined the said post on 29.8.1985. It is the case of the petitioner that pay scale of the Librarians in the different faculties under the control of respondent No. 1-Health Department like Medical, Ayurved, Pharmacology, Nursing and Dental were commonly fixed at Rs. 550-900/- with effect from 1.1.1973 and pay of the petitioner came to be fixed on 27.7.1987 in the pay scale of Rs. 1640-2900/-under the revision of pay rules of 1987. The petitioner was accordingly given higher grade scale on completion of nine years of service by an order dated 22.1.1994. It is the case of the petitioner that he was entitled to get his pay revised as per UGC scale adopted by the State Government vide G.R. dated 6.6.1989. 4. Learned advocate Ms. Hathi thereafter submitted that during the period between 1987-1994, UGC prescribed new scales for the Librarian and other teaching staff for all the Universities and directed the State Government to give the effect to the said representation of pay scales. 4. Learned advocate Ms. Hathi thereafter submitted that during the period between 1987-1994, UGC prescribed new scales for the Librarian and other teaching staff for all the Universities and directed the State Government to give the effect to the said representation of pay scales. The petitioner was working as Librarian in the University and therefore became entitled to get the pay scale as per the UGC. It is specifically contended by learned advocate that petitioner was possessing necessary qualification provided under the resolution dated 6.6.1989. In spite of that the benefit was not given to the petitioner. The petitioner made representation to the respondent Nos. 1 and 2. However, the request of the petitioner was not accepted on the ground that the petitioner is not possessing the requisite qualification. Learned advocate has referred to the document produced at page 30 of the compilation and submitted that petitioner was having qualification of M.A./M.Ed., BLI (Science) and therefore the request of the petitioner ought to have been considered by the respondents. 5. Learned advocate has placed reliance upon the decision rendered by the Division Bench of this Court in the case of Lok Bharti, Sanosara v. Naranbhai B. Patel and Ors., reported in 2012(3) GLH 595 , Kantilal R Patel Ass. Director of Libraries v. Director of Libraries of Central Library, reported in 2001-JX(Guj) 1544, N.C. Patel and others v. State of Gujarat and others, reported in 1983 GLH 964 . 6. On the other hand, learned AGP Mr. Goutam Swapneshwar mainly contended that the petitioner does not possess the requisite qualification for the post of Librarian and therefore he is not entitled to the pay scale as demanded by him and therefore the respondent authority has rightly rejected the representation made by the petitioner. Learned AGP has referred to the document which is produced at page 58 and more particularly page 59 and thereafter it is contended that the petitioner was not holding the masters degree and therefore he is not entitled to get the pay scale as prayed for by him and therefore the respondent-authority has rightly not considered the case of the petitioner. He, therefore, requested that the petition be dismissed. 7. Learned advocate Mr. Dave appearing for respondent No. 3-University has contended that the petitioner was holding requisite qualification and therefore he was appointed on the post of Librarian by the respondent No. 3. He, therefore, requested that the petition be dismissed. 7. Learned advocate Mr. Dave appearing for respondent No. 3-University has contended that the petitioner was holding requisite qualification and therefore he was appointed on the post of Librarian by the respondent No. 3. Respondent No. 3 has recommended the case of the petitioner to the respondent No. 1-government. He, therefore, requested that this Court may pass appropriate order in the facts and circumstances of the present case. 8. I have considered the submissions canvassed on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record. It has emerged from the record that the petitioner has obtained the degree of M.A./MED. as well as BLI (Science). As per the advertisement, the petitioner was qualified and therefore after following due procedure of law, he was appointed on the post of Librarian in the Post-Graduate department by respondent No. 3-University. The only objection taken by learned AGP that the petitioner was not holding masters degree and therefore he is not entitled to get the pay scale of UGC, cannot be accepted in view of the fact that page No. 59 produced with the compilation indicates that for the post of Librarian with pay scale of Rs. 500-900, the essential requirement is that of 'a degree from recognized University with Library Science) and (2) age not more than 30 years'. From the record, it is revealed that the petitioner is having degree from recognized University with Library Science and he was not more than 30 years and therefore the petitioner is fulfilling the essential condition. Thereafter, it is provided that desirable requirement for the post of Librarian and for a particular pay scale is masters degree. At this stage, it is to be clarified that masters degree is not an essential condition but it was desirable. The petitioner is having masters degree i.e. M.A./M.Ed. but not in Library Science. However, as observed hereinabove, masters degree in Library Science cannot be said to be an essential condition and therefore the objection taken by the respondent is misconceived. Hence, the contention of the learned AGP is required to be discarded. 9. The petitioner is having masters degree i.e. M.A./M.Ed. but not in Library Science. However, as observed hereinabove, masters degree in Library Science cannot be said to be an essential condition and therefore the objection taken by the respondent is misconceived. Hence, the contention of the learned AGP is required to be discarded. 9. Thus, when the petitioner is holding requisite essential qualification for the post of Librarian and for the pay scale as prescribed by UGC, there was no justification for the respondent authority to deny the said pay scale to the petitioner. 10. In the case of N.C. Patel (supra), this Court held in paragraph 2 as under: "The petitioners No. 1 to 18 herein are working as librarians in the Medical Colleges and petitioner No. 19 is working as librarian in the Pharmacy College which gets 100% Government Grant. The petitioners made a representation, to the Government drawing its attention to this incongruity. The Government by its letter dated 10-6-81 (Annexure 'F') stated that the resolution revising the pay-scales of the librarians is that of the Education Department. Hence it is applicable to Colleges under the Education Department. According to the Government, the Medical Colleges and the Pharmacy College are working under the Department of Health and Family planning and so, the resolution of the Education Department could not be made applicable to the librarian of the Colleges under the Health and Family Planning. This is indeed surprising on the part of the Government to take such a stand. It is settled principle of law that same pay has to be given for the same or similar work. The fact that some colleges are under one Government Department and other Colleges under another Department of the same Government should not make any difference as regards the pay-scales of the employees of different colleges doing the same or similar work. The Supreme Court has very clearly laid down this principle in the case of Randhir Singh v. Union of India Ors. AIR 1982 SC 879 wherein the Supreme Court observed as follows: "Apparently in the view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities. We cannot accept this view. AIR 1982 SC 879 wherein the Supreme Court observed as follows: "Apparently in the view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from Department to Department notwithstanding that their powers, duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and nor for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different department." The respondent State has filed its affidavit-in-reply but has not been able to make out any convincing ground for denying the revised pay-scales to the petitioners. The State has relied on the same ground as set out in the aforesaid letter which is totally irrelevant. Miss K.N. Valikarimwala the learned Assistant Government Pleader has not been able to show any convincing reason for this obviously wrong and untenable stand of Government. In the circumstances of the case, the petition has to be allowed and the Rule has to be made absolute. It is hereby directed that the aforesaid Government resolution of Education Department will be made applicable to the Librarians working in the Government and non-Government Medical Colleges and the Pharmacy College. Accordingly the petitioners are entitled to the revised pay-scale of Rs. 550-25-750-EB-30-900 with effect from 1-1-1973. The difference in the salary actually paid and that which the petitioners are entitled under this judgment shall be worked out within a period of three months from to-day and the said amount will be paid to the petitioners within three months thereafter. The said amount shall be payable by the respondent State. Rule is made absolute with no order as to costs." 11. In the case of Kantibhai Patel (supra), this Court has held in paragraphs 3 and 7 as under: "3. The said amount shall be payable by the respondent State. Rule is made absolute with no order as to costs." 11. In the case of Kantibhai Patel (supra), this Court has held in paragraphs 3 and 7 as under: "3. My attention was also invited to the judgment of this court in the case of M.S. Pandya v. State of Gujarat & ors. reported in 1997(1) GLR 647 which also dealt the same case like the present case before me. The learned single Judge after considering several judgments of this court, in para 20 observed as under: "In my opinion the decisions of this court referred to hereinabove would clearly apply to the Librarians working in Government, whether as District Librarians or College Librarians, else it would clearly amount to giving discriminatory treatment to the District Librarians. The question regarding discrimination would obviously be dependent upon the facts concerning powers duties and responsibilities and this court had frequently expressed that there was no distinction on that score between the District Librarians and the College Librarians. This would, however, be subject to what has been noted from the subsequent event which was not canvassed previously at any point of time and which arises from the Rules framed in 1986. 7. In my view there is no distinction between the work of Librarian working in the College Library and the Librarian working in District Library wholly by the Government authorities. There are also no distinguishing features between them. In fact I am bound by the decisions of this Court which I have referred to earlier on this behalf. In my view the point is concluded by various decisions of this court. So far as the point involved in this case is concerned the same is concluded by the Division Bench of this Court and therefore, the point is no longer res integra. Therefore, the petition deserves to be allowed and the same is accordingly allowed." 12. The Division Bench of this Court in the case of Lok Bharti Sanosara (supra) held in paragraph 7 as under: "7. However, on the second aspect, there is considerable force in the submission of the learned Counsel for the petitioners herein. Therefore, the petition deserves to be allowed and the same is accordingly allowed." 12. The Division Bench of this Court in the case of Lok Bharti Sanosara (supra) held in paragraph 7 as under: "7. However, on the second aspect, there is considerable force in the submission of the learned Counsel for the petitioners herein. It is true that if the College or any Institution is affiliated with any University, the person may be employee of the Institution affiliated with such University, but on the aspects of pay-scale, ultimately is to be fixed and sanctioned by the State Government. If for a particular Institution, the State Government has prescribed a particular pay-scale, though such College is affiliated with any University, unless the Resolution of the State Government is struck down, the benefit cannot be granted. At the same time the employees of the Institution, who are governed by a particular Resolution of the Government at par with the employees of a College affiliated with the University for the purpose of comparison of a pay-scale, a full-fledged inquiry is required to be undertaken by considering the duties and service conditions. If the finding is recorded that in all respect, the duties are the same and the posts are also the same, then in that case, the legality and validity of the Government Resolution, whereby a particular, different pay-scale has been fixed for a particular Institution would be at stake. It is only after the Resolution of the Government is set aside or declared illegal, on the principles of equal pay for equal work or on the ground of Article 14 or 16 of the Constitution of India, an employee of an Institution may succeed to get the same pay-scale as are being available to the employees of the University or the College affiliated with the University." 13. Keeping in mind the decisions rendered by this Court in the aforesaid cases, if the facts of the present case are considered, it can be said that when the petitioner was holding the requisite qualification and when he was duly appointed on the post of Librarian after following due procedure of law, there was no justification on the part of the respondent-authority in giving the different treatment. It is specific case of the petitioner that all the other Librarians of different affiliated colleges and other Librarians who were in service in different Universities were getting the benefit of UGC pay scale which was accepted in the year 1989. However, on flimsy ground that the petitioner is not holding the requisite qualification, such benefit was denied to the petitioner and therefore in the facts of the present case, when it is revealed that petitioner was holding the requisite qualification, the respondents are directed to give the benefit of revised pay scale as per the UGC to the petitioner as per resolution dated 6.6.1989 and thereafter the respondents are further directed to give the consequential revisions as adopted by the subsequent government resolutions referred to in the prayer clause of the petition. 14. Hence, the impugned order dated 5.11.2003 passed by the respondent-authorities is quashed. The petition is allowed with the aforesaid direction. When the respondent authority has wrongly withheld the benefit for which the petitioner was entitled, the respondent is directed to pay the interest @8% on the difference of the payment. The aforesaid benefit shall be calculated and granted to the petitioner within a period of ten weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent.