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2016 DIGILAW 767 (GUJ)

Shaikh Ahesan Faijumiya v. State of Gujarat

2016-04-07

K.J.THAKER, S.R.BRAHMBHATT

body2016
JUDGMENT : Kaushal Jayendra Thaker, J. 1. By way of this appeal, the appellants have challenged the judgment and order dated 02.12.1996 passed by the learned Single Judge in Special Civil Application No. 12047/1994. 2. The brief facts of the present case are that the appellants are working as Librarians Professional Assistants in the District Libraries at various places under the Education Department of the State Government. The appellants are possessing requisite qualifications for the post of Librarians/Professional Assistant. The appellants are getting the pay scale of Rs. 425-700, whereas, the Librarians working in the Colleges were given the higher pay-scale of Rs. 550-900 with effect from 1.1.1973 under the Government Resolution dated 6.10.1979. The appellants are in the same cadre working in the same department with identical nature of duties and functions and with the same responsibilities and in spite of the identical nature of duties, functions and the responsibilities, they have been denied the higher pay scale at par with the College Librarian. Therefore, the appellants have filed Special Civil Application No. 12047/1994 claiming the same benefits. The learned Single Judge by judgment and order dated 02.12.1996, denied the pay-scale at par with the College Librarian, hence, this appeal. 3. Heard the learned advocates appearing for the parties and considered the submissions. 4. It is submitted that on the factual back ground, this is a fit case which is covered by the judgment of this court in the case of N.C. Patel & Ors. v. State & Ors., reported in (1983)2 GLR 1526 , and a recent decision of the Division Bench of this Court in Letters Patent Appeal No. 162 of 2002, wherein, the appeal preferred by the Director of Libraries, Central Library has been dismissed. It is submitted by Mr. Chauhan learned advocate that the learned Single Judge has failed to appreciate that the appellants are working as Librarians/Professional Assistants in the District Libraries at various places in the State of Gujarat under the Education Department and all the appellants are possessing the requisite qualifications for the post of Librarians/Professional Assistants as prescribed by the Government and discharging the same duties and functions with more responsibilities and are similarly situated at par with the College Librarians in all respects. It is submitted by Mr. Chauhan that the benefits of the Government resolution dated 06.10.1979 should have been extended to the appellants also. 5. It is submitted by Mr. Chauhan that the benefits of the Government resolution dated 06.10.1979 should have been extended to the appellants also. 5. As against this, the State has submitted that the decision of the learned Single Judge cannot be found fault with. The subsequent affidavits showing the gradation are also perused by this Court. The Government framing recruitment Rules for the post of Assistant Direction, Library Class-II is pressed into service in the fresh affidavit sworn by appellant No. 11. 6. Having heard the learned counsels and having perused all these decisions, the decision of the learned Single Judge, Annexure-K, and resolutions dated 24.12.1993 to 02.4.1994, also pressed into service. The Notification of 2002 is also brought on record by the appellants in this appeal. 7. It is required to be noted at this stage that the judgment of the learned Single Judge impugned in this Letters Patent Appeal is, in fact, rendered in the group of three petitions being Special Civil Application No. 2473/1983, 2093/1986 and 12047/1994. The present appellants are the petitioners in Special Civil Application No. 12047/1994 and their case is slightly different then the case of the petitioners of Special Civil Applications Nos. 2473/1983 and 2093/1986. The learned Single Judge has discussed elaborately in earlier two petitions in para 1 to 12 and has made reference to the proceedings of SCA No. 12047/1994 in para 13, inter alia, observing that the case of those petitioners was based upon the decision of this High Court in the case of Shri N.B. Patel in SCA No. 878/1984, confirmed in LPA No. 189/1986 on 3.3.1993 and approved in SLP also. Learned Single Judge has extensively referred to the decision of this Court in the case of Shri N.B. Patel in SCA No. 878 if 1984 and LPA No. 189/1986. The learned Single Judge has also observed that the difference in pay-scale is on account of Government Resolution dated 06.10.1979 which provided for revision of pay-scale of Librarians working in Government Colleges from 425-700 to 500-900 with effect from 01.01.1973. It is required to be noted that learned Single Judge in para-15 of his judgment, has also referred to a matter in which there was a case of Librarian employed in L.M. College of Pharmacy, Ahmedabad, which was based upon the decision in the case of M.C. Patel & Ors. It is required to be noted that learned Single Judge in para-15 of his judgment, has also referred to a matter in which there was a case of Librarian employed in L.M. College of Pharmacy, Ahmedabad, which was based upon the decision in the case of M.C. Patel & Ors. v. State of Gujarat, in Special Civil Application No. 1946 of 1982, wherein, the Court had directed the respondents to place the petitioner therein in the pay-scale of Rs. 700-1300. Thus, the learned Single Judge has elaborately discussed the cases and the facts in paras-16,17 and 18 and even quoted the observations of the Court which clearly indicate that there were cases in respect whereof the agitation was on account of non-grant of scale to Librarians working in other colleges. While observing in para-20 of the judgment, the learned Single Judge has elaborately attempted to indicate the distinction which would be better to reproduced as under so as to appreciate the reasonings. Para-20 to 27 and 35 of judgment of learned Single Judge, read as under: "20. In my opinion, the decisions of this court referred to hereinabove would clearly apply to the Librarian 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. Reference has been made to a decision of Letters Patent Bench in Letters Patent Appeal No. 228/1993 with 226/1993 and 227/1993 (Coram: B.N. Kirpal, CJ as his Lordship then was and R.K. Abichandani, J) pronounced on 7.4.1994. Following observations have been read from page 16 of the copy of the judgment supplied to this Court:-- "It is not for the court to embark upon a detailed survey of various factors which have gone into the recommendations made by the Commission and under take reappraisal of the material. Following observations have been read from page 16 of the copy of the judgment supplied to this Court:-- "It is not for the court to embark upon a detailed survey of various factors which have gone into the recommendations made by the Commission and under take reappraisal of the material. It is not at all disputed that proper norms have been adopted by the Commission in its recommendatory process and this Court need not try to substitute that expert body and the executive Government in the task of pay fixation. It cannot be said that in taking the impugned decision the authority has acted arbitrarily or committed any grave error to justify interference by this court. The question of equation of posts or question of pay, must be left to the executive Government. The pay Commission and Government would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by the commission or committee, the Court should equivalents unless it is shown that it was made with extraneous consideration. As held by the Supreme Court in Umesh Chandra Gupta & Ors. v. Oil & Natural Gas Commission, reported in AIR 1989 SC 29 , the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by replying upon the averment made in the affidavits of interested parties. The Supreme Court has, in Secretary, Finance Department v. West Bengal Registration Service Association and Ors., reported in AIR 1992 SC 1203 , held that it is well settled that the equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and therefore, ordinarily Courts will not enter upon the judiciary task of job evaluation, which is generally left to expert bodies like the Pay Commissions, etc. It was observed that job evaluation was both a difficult and time consuming task which even expert bodies having the assistant of staff with requisite expertise have found difficult to undertake some times on account of want of relevant date and scales for evaluating purposes different groups of employees. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relatives have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion etc. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relatives have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples on other cadre as well." There can be no dispute about the aforesaid propositions of law. Even in Randhirsingh's case (supra), the same have been notice. However, when on facts this courts had occasions to hold applicability of the Government Resolution dated 6.10.1979 to the particular District Librarian - petition in the respective matters, it would not be open to this court to reopen such question. In the facts of the present case, therefore, the aforesaid decision would not be applicable." 21. It has been submitted on behalf of the Government that the resolution dated 06.10.1979 had to be passed on account of University Grant Commission ('UGC' for short) making recommendations for the pay scales of the staff of the colleges. The pay scales of librarians in the Government and non Government colleges were accordingly fixed pursuant to the recommendations made in the report of Sec Commission. Thus, making available the scale of Rs. 550-900 to them by passing Government Resolution dated 06.10.1979 the Government resolution dated 06.10.1979 the Government applied the said pay scale of Rs. 550-900 with effect from 01.01.1973. Prior to that all Librarians were getting the pay scale of Rs. 425-700 as per the report of the Desai Pay Scale Commission. This resulted in making of different staff patent and different pay structure by classifying the Librarian into the college Librarians and District Librarians. It has accordingly been submitted that senior Librarians were transferred as college Librarians and Junior Librarians were transferred as District Librarians or Professional Assistants. Intervention of the UGC's pay scale for the College Librarians (Part of College staff) required the Government to frame separate recruitment rules for college Librarians so as to meet with the requirements of UGC. Reference has therefore, been made to these rules which according to the submission of the Ld. AGPS. Earmarked the deference and rationalized the classification between the college Librarians and the District Librarians. Reference has therefore, been made to these rules which according to the submission of the Ld. AGPS. Earmarked the deference and rationalized the classification between the college Librarians and the District Librarians. The notification publishing the rules may be reproduced:-- NOTIFICATION Education Department Sachivalaya, Gandhinagar DATED THE 21ST MAY, 1986 GH/SH/22 MIS - 1079-68746-B: In exercise of the powers conferred by the provisio to article 309 of the Constitution of India and supervision of all existing rules made in this behalf, the Governor of Gujarat hereby make the following rules to provide for regulating recruitment to the post of librarian in Government Colleges in Gujarat Education Service Class-III. Namely. 1. These rules may be called the librarian in Government colleges Recruitment Rules, 1986. 2. Appointment to the post of Librarian in the Government Colleges in Gujarat Education Service Class - III shall be made either; (a) by promotion of a person of proved merit and efficiency from amongst the persons working as District Librarian or Professional Assistant or Office Librarian having three years Services as such, or (b) by direct selection. 3. To be eligible for appointment by direct selection to the post mentioned n rules 2, candidates shall. (a) not be more than 30 years of age; (b) Possess - (I) a Bachelor's degree of a recognized University, and (ii) degree or diploma in Library Science of a recognized University. (c) Have practical experience in Library work of about two years, (d) Have adequate knowledge of Gujarati or Hindi provided that upper age limit may be relaxed in favour of a candidate already in service of Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classifications and Recruitment General Rules, 1967, as amended from time to time. 4. The appointment by promotion and directed selection shall be made in ratio 1.1 respectively. 5. The candidate appointed by direct selection shall be on probation for a period of one year. 6. The selected candidate shall be required to pass the departmental examination, if any and an examination in Hindi or Gujarati or both in accordance with rules prescribed by Government from time to time. By order and in the name of the Governor of Gujarat. Sd/ (K.R. Goswami) Deputy Secretary to Government 22. 6. The selected candidate shall be required to pass the departmental examination, if any and an examination in Hindi or Gujarati or both in accordance with rules prescribed by Government from time to time. By order and in the name of the Governor of Gujarat. Sd/ (K.R. Goswami) Deputy Secretary to Government 22. It has been submitted that in none of the aforesaid decisions reference has been made to the aforesaid notification which is necessarily a subsequent development though the same might have been available when the matters/matter actually came argued before the concerned court. It is, therefore, submitted that n respect of the post of Librarian in Government college in Gujarat Education Service, Class - III, the Librarian in Government college Recruitment Rules, 1986 operate. By virtue of such rules a college Librarian is to be appointed either by promotion, a person of proved merit and efficiency from amongst the persons working as District Librarian or Professional Assistants or office Librarians having 3 years or service as such or by direct selection and the eligibility criteria for district selection is inter alia possession of following qualifications:-- (1) a Bachelor's degree of a recognized University, and (2) Degree or diploma in Library Science of a recognized University; (3) Over and above, practical experience in Library work of a bout two years. 23. On the strength of the aforesaid rules, it has been submitted on behalf of the Government that now there is a rational basis of classification between college Librarian and District Librarians and such basis is the educational qualification and other requirements. It has also been submitted that the post of college Librarian. In reply it has been submitted that even if these rules are to b applied on the assumption that by virtue of these rules a rational classification has been brought in to existence, it would not operate retrospectively and apply to those Librarians, who have been appointed prior to 21.05.1986. 24. In my opinion the answer to the rival submission based on the aforesaid rules is to be found in the decision of the Apex Court in the case of the State of Jammu & Kashmir v. Triloki Nath Khoss reported in AIR 1974 SC P.J.. In that case, the diploma holding challenged the validity of certain service rules framed by the Government of Jammu & Kashmir. In that case, the diploma holding challenged the validity of certain service rules framed by the Government of Jammu & Kashmir. A learned Single judge dismissed the petition, but in appeal in Division Bench of Jammu & Kashmir High Court took the view that the impugned rules were violative of Article 14and 16 of the Constitution. The question that arose was whether persons draw from different sources and integrated into the one class could be classified for the purpose of promotion on the basis of their educational qualifications, the classification being that between the diploma holders and the degree holders. It was also contented that such rules did not have retrospective application. After referring to the rival submission, the Apex Court held that the classification of the basis of educational qualifications would be a rational classification. In this connection para. 40 A of the citation would assume importance and may be reproduced:-- "Educational Qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Naransingh Rao (1968) 1 SCR 407 : 9 AIR 1968 SC 249) where the cadre of Tracers was recognized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non-matriculates n a lower scale, it was held that Articles 14 and 16do not exclude the lying down of selective tests nor do they preclude the Government from ling down qualifications for the post in question. Therefore, it was open to the Government to give performance to candidates having higher educational qualification. In Ganga Ram v. Union of India, (1970) 3 SCR 481 at P.488 : (AIR 1970 SC 2 : 78) it was observed that; "The State which encounters divines problems arising from a variety of circumstances is entitled to play down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different department." In the Union of India v. Dr. (Mrs.) S.B. Kohli, AIR 1973 SC 811 (813) a Central Health Service Rule requiring that a professor in orthopedics must have a post graduate degree in the particular specialty was a upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objective sought to be achieved and there can be no question was not the only criterion of suitability was answered laconically as strange." 25. It was, therefore, held that such a classification made under the rule in question as between the graduates and the diploma holders for the purpose of promotion to the cadre of Assistant Engineers was held to be not violative of Articles 14 and 16 of the Constitution. This is the first answer which can be given to the submissions made on behalf of the rival parties in the matters in hand. The second answer is also found from Para 22 of the citation, which says as under:-- "It is wrong to characterise the operation of service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purpose, undoubtedly operators on those who entered service before the framing of the rule but it operators in future, in the sense that it governs the future right of promotion of those who are already in service made or reduce a pay scale already granted. They provide for a classification by prescribing a qualifications standard, the measure of that standard. 26. In the case in hand the rules quoted above on the face of them read prospective, in the sense that the educational qualifications prescribed for being a college Librarian would obviously be applicable to those who enter in the service as college Librarian on or after the date of the framing of the rules. They would be prospective in the sense that classifications of college Librarian and District Librarian on the basis of qualifications and experience has for the first time been introduced. They would be prospective in the sense that professional avenue on the basis of proved merit and efficiency has been for the sense that ratio of 1:1 between direct selection and promotion has also been for the first time introduced by the aforesaid rules. Besides, there is not retrospective operation expressed or implied in the Rules. 27. They would be prospective in the sense that professional avenue on the basis of proved merit and efficiency has been for the sense that ratio of 1:1 between direct selection and promotion has also been for the first time introduced by the aforesaid rules. Besides, there is not retrospective operation expressed or implied in the Rules. 27. It would be clear from what is stated above that whereas the rules bring into play a rational classification based on education qualifications and other criteria in the context of the events that can be gathered from the facts noted hereinabove, the same would have been made applicable to those who have entered Government service as Librarians subsequent to the passing of the aforesaid rules. It would, therefore, mean that the scale that would be available to the college Librarian, namely, Rs. 550-900 would also have to be made available to a District Librarian who entered the post before 21.05.1986. 35. There are in all 32 petitioners in SCA No. 12047 of 1994. The first petitioner being Gujarat Rajya Sarkari Jaher Granthalaya Technical Karmachari Mandal, accordingly the particulars of 31 petitioner are supplied by separate table and the relevant first 5 columns thereof are reproduced herein below; It appears from the aforesaid table that the petitioners Kantibhai Ranchhoddas Patel, Mohmed Iqbal Shaikh and Varshaben B. Mehta would be entitled to the benefit of the Government Resolution dated 6.10.1979 as concluded hereinabove." 8. Thus, the fine distinction which has been drawn on account of advent of the recruitment rules of 1986 would naturally not permit any further view to be taken than what has been taken by the learned Single Judge, whose order is under challenged in this Letters Patent Appeals. The fact remains to be noted that the condition created on account of advent of the Recruitment Rules of the year 1986, cannot be reconcile so as to make any order which may indicate that there was an equality so far as working is concerned. In fact, the learned Single Judge has in terms dealt with the authorities cited at bar while indicating the inability to give any relief to the petitioners of this petition, we are unable to record any distinguishing feature therefrom and therefore, we have to accept the said judgment in its totality. This Letters Patent Appeal is dismissed. 9. In fact, the learned Single Judge has in terms dealt with the authorities cited at bar while indicating the inability to give any relief to the petitioners of this petition, we are unable to record any distinguishing feature therefrom and therefore, we have to accept the said judgment in its totality. This Letters Patent Appeal is dismissed. 9. Before parting with this judgment, we have to observe that as submitted at the Bar, the relief, in case, the appeal is allowed, was not likely to create greater financial burden upon the State and facts remain to be noted that other similarly situated Librarians were accorded the benefit as they were employed prior to the advent of Recruitment Rules of 1986. It would be open to the petitioners to approach the State for seeking appropriate relief, which would be considered by the State without being in any manner influenced by the rejection of the present Letters Patent Appeal. 10. In view of the above, Civil Application No. 3732 of 1997 and Misc. Civil Application No. 751 of 2005, stand disposed of accordingly.