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Gujarat High Court · body

2016 DIGILAW 929 (GUJ)

Ashwin D. Vyas v. State of Gujarat

2016-04-29

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. In this group of petitions, the issue involved is common and therefore taken up for hearing together and decided by this common judgment. However, for the sake of convenience, the facts stated in Special Civil Application No. 10445 of 2001 are recorded. 2. The petitioners have filed the petitions wherein they have prayed that the Government Resolution dated 20.6.2001 insofar as it excludes the cadre of Librarian in Diploma Level Institutions from revision of pay scale be declared as arbitrary and violative of Articles 14and 16 of the Constitution of India. It is further prayed that the respondent-State be directed to accept the recommendations of AICTE contained in its notification dated 30.12.1999 with regard to the pay scale of Librarians working in Diploma Level Institutions and to give effect from the same date of 1.1.1996 to each of the petitioners and thereby respondent-State be directed to fix the pay of the petitioners in the revised pay scale of Rs. 8000-275-13500 and to pay the difference of salary with interest. 3. Brief facts for considering the controversy are as under: 3.1 The petitioners are serving as Librarians in the Technical Institutions imparting Diploma Course in Polytechnics run by the Government of Gujarat. It is the case of the petitioners that All India Council for Technical Education ('AICTE' for the sake of brevity) which was established by the Act of Parliament for proper planning and coordinated development and standards in technical education system throughout the country and the issue regarding revision of pay scales and service conditions of teachers and other staff of technical institutions (degree level and diploma level) were under consideration. On the recommendation of the central fifth pay commission, AICTE recommended all the pay scales and service conditions for the Diploma Level Technical Institutions in the country which was applicable to all Diploma Level Technical Institutions and therefore the notification of revision of pay scales and associated terms and conditions of service of teachers, librarians and physical education personnel for the institutions was issued on 30.12.1999. As per the Table A-3 annexed with the said notification, scales of pay for Librarians and Physical Education Instructor for the institutions were prescribed. The Librarians are compared with lecturers and proposed pay scales are Rs. 8000-275-13500. As per the Table A-3 annexed with the said notification, scales of pay for Librarians and Physical Education Instructor for the institutions were prescribed. The Librarians are compared with lecturers and proposed pay scales are Rs. 8000-275-13500. It is the case of the petitioners that because of the said notification issued by AICTE, they become entitled to the said scale from 1.1.1996. 3.2 It is further the case of the petitioners that all the State Governments in the country were required to implement the recommendations of AICTE and number of states including State of Tamil Nadu, Andhra Pradesh, Kerala, Karnataka, Madhya Pradesh etc. have implemented the said notification by revising the pay scales of Librarians. However, the State of Gujarat issued the impugned Government Resolution dated 20.6.2001 wherein it was stated that the Government of India and AICTE have decided to implement the revised pay scale as per the 5th pay commission's recommendation to the teachers in the institutions and revision of pay scales to the teachers of institutions on the same line was under consideration of the State Government and that after careful consideration, it had decided to implement the revised pay scales of teachers of Government and grant-in-aid diploma level institutions with effect from 1.1.1996 and the Director of Technical Education was ordered to arrange the fixation of pay as per the procedure laid down. However, the Librarians working in the Government institutions are excluded for no justifiable grounds. Thus, the said Government Resolution is under challenge qua exclusion of Librarians working in the Diploma Level Institutions. The petitioners have therefore made representation. However, no reply has been given to the petitioners from the respondent-State and therefore the present petitions are filed. 4. Heard learned advocate Mr. Nirav Thakkar for the petitioners in all the petitions and learned AGP Mr. Udit Mehta for the respondents. 4.1. Learned advocate for the petitioners mainly submitted that there is a clear cut discrimination amongst the Librarians working in Government polytechnics/diploma institutions vis-à-vis Librarians working in Government aided Degree Colleges at the hands of the respondent-State which is violative of Article 14 of the Constitution of India and therefore the reliefs prayed for in the present petition be granted. 4.2. It is further contended that qualification required for appointment as Librarians in the Government Polytechnics/Diploma Colleges and Government Aided Degree Colleges is the same. 4.2. It is further contended that qualification required for appointment as Librarians in the Government Polytechnics/Diploma Colleges and Government Aided Degree Colleges is the same. Learned advocate referred to the additional affidavit filed by the Government which is placed at page 75 of the compilation. Learned advocate, after referring to the qualifications of both types of Librarians, contended that the qualifications are same for both the posts and therefore there is no justification on the part of the State Government to deny the same benefit to the petitioners. 4.3. Learned advocate further contended that the same type of work is to be taken from Librarians working in Government Polytechnics and from the Librarians working in the Degree Colleges. Even posting of Librarians is inter-transferable inasmuch as the Librarians working in Degree Colleges can be transferred to a polytechnic or a Diploma Colleges and vice-a-versa. Therefore, the impugned Government Resolution issued by the State Government whereby Librarians working in Diploma Institutions/Polytechnics are excluded from giving the benefit of pay scale of 5th pay commission is arbitrary, unreasonable and therefore the same be quashed and set aside. 4.4. It is further submitted that most of the state governments have implemented the recommendations of fifth pay commission and implemented the notification issued by AICTE on 30.12.1999 and therefore there is no reason for the respondent-State of Gujarat for not implementing the notification of AICTE. At this stage, learned advocate referred to the affidavit-in-rejoinder filed on behalf of the petitioners in Special Civil Application No. 10445 of 2001 annexed with the same and submitted that various State Governments have passed the resolution whereby the recommendation of 5th pay commission is implemented qua the Librarians in Government Polytechnics and other polytechnics and equivalent institutions. 4.5. It is further contended that on the recommendation of AICTE for revision of pay scales of different cadres of teaching and non-teaching staff, about 1200 employees are given the benefit of revision of pay but it is denied to Librarians working in Government Polytechnics/Diploma Institutions which comes to eleven only. 4.6. The respondent-State Government has implemented the notification of AICTE issued on 30.12.1999 qua other teaching and non-teaching staff working in Polytechnics/Diploma Institutions. However, the same is not implemented qua Librarians working in such institutions for which there is no justification and such decision is arbitrary and violative of Article 14 of the Constitution of India. 4.6. The respondent-State Government has implemented the notification of AICTE issued on 30.12.1999 qua other teaching and non-teaching staff working in Polytechnics/Diploma Institutions. However, the same is not implemented qua Librarians working in such institutions for which there is no justification and such decision is arbitrary and violative of Article 14 of the Constitution of India. He, therefore, urged that the present petition be allowed and reliefs prayed for in the petitions be granted. Learned advocate relied on the order dated 29.2.2016 passed in Special Civil Application No. 17599 of 2003 in the case of Shailesh M. Jani V/s. State of Gujarat. 5. On the other hand, learned AGP Mr. Mehta mainly contended that the recommendation of AICTE for Degree Colleges were accepted by the State Government as a policy matter, however, the same is not accepted qua Polytechnic/Diploma Institutions. The said decision of the Government is a policy matter in which this Court may not interfere with. It is further contended that the duties of the Librarians is some what higher in the Degree Colleges and at present they are not inter-transferable. However, Librarians of diploma Institutions can be promoted in the degree Institutions. The options were given to the petitioners to work in Degree Colleges. The petitioner No. 1 of Special Civil Application No. 10445 of 2001 and other two petitioners of the said petition exercised the said option and petitioner No. 1 was in fact promoted as Librarian in degree college from 1.1.2001 and other two petitioners will be given promotion as per their seniority in due course. 5.1. Learned AGP further contended that AICTE recommendations were accepted by the State Government qua teaching staff only and for others the State Government has not accepted the said recommendation. However, it cannot be said that any fundamental right of the petitioners has been violated. He, therefore, submitted that the petition is devoid of merits and therefore the same be dismissed. 6. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it is clear that the petitioners are working as Librarians in Government Polytechnics/Diploma Institutions. He, therefore, submitted that the petition is devoid of merits and therefore the same be dismissed. 6. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it is clear that the petitioners are working as Librarians in Government Polytechnics/Diploma Institutions. Qualifications for Librarians working in Degree Engineering Colleges are prescribed by the education department by resolution dated 30.3.1988 which provides as under: "(i) Degree in Arts or Commerce or Science of recognised university with First Class or Second Class and Post Graduate in Library Science of recognised university with First Class or Second Class. Or Post Graduate Degree of M.A. Or M.Sc. Or M.Com. with First Class or Second Class and Bachelor degree in Library Science with First Class or second class or Diploma in Library Science with First Class or Second Class. (ii) Recruitment to be made in future for the post of Librarian the minimum qualification is as under A) Post graduate degree with higher second class in any subject other than Library Science and good Academic Record. B) Post Graduate degree in Library Science with First Class or Second Class." The respondent-Government thereafter issued the circular on 6.4.1994 whereby the minimum qualification of Librarian (Gujarat Educational Services Class III) in diploma engineering by direct selection is provided which reads as under: "3(b)(i) Degree in Arts or Commerce or Science of recognised University with first or second class and post graduate in Library Science of the recognized university with First or Second Class. (ii) a post graduate degree in Arts or Commerce or Science of recognized University with first or second class and a degree in Library Science of a recognized university with First Class or Second Class." 7. Thus, if the qualifications prescribed for Librarians in degree engineering as well as diploma engineering are carefully examined, it is clear that the qualifications are similar. It is not in dispute that the petitioners possess requisite qualification for the post of Librarian. It is also revealed from the record that the options were given to the petitioners by the respondent-State either to work in Diploma/Polytechnic Institutions or get themselves transferred to Degree College itself suggests that the requirement of qualification was the same in both the kinds of Librarians. It is also revealed from the record that the options were given to the petitioners by the respondent-State either to work in Diploma/Polytechnic Institutions or get themselves transferred to Degree College itself suggests that the requirement of qualification was the same in both the kinds of Librarians. It is also clear from the affidavit filed by the respondents that the petitioners had opted to serve in Degree Colleges. However, except petitioner No. 1 of Special Civil Application No. 10445 of 2001, the other petitioners were not transferred to Degree Colleges. Thus, this Court is of the opinion that the qualifications of both the posts are the same. 8. It would further emerge from the record that though the AICTE issued the notification on 30.12.1999 which is produced at page 18 of the compilation, as per Table A-3 of the said notification, post of Librarian and physical education instructors are comparable with lecturer and proposed pay scales for the said post is Rs. 8000-275-13500. The said recommendations do not differentiate between Librarians working in Government Polytechnics/Diploma Institutions and those working in Degree Colleges. 9. When the State Government has issued the impugned Government Resolution dated 20.6.2001, the respondent-State Government accepted to implement revised pay scale of teachers of Government and grant-in-aid diploma level/technical/pharmacy Institutions with effect from 1.1.1996 as per annexure with the said Government Resolution. If Annexure I of the said Government Resolution is carefully seen, it is clear that the State Government has revised the pay scale of Lecturers working in Diploma Level Technical Institutions. Thus, the respondent-State has implemented the recommendations of AICTE made in notification of 30.12.1999 partly. However, there is no reference in the impugned Government Resolution dated 20.6.2001 that why the said notification of AICTE has not been implemented qua the Librarians working in Government Polytechnic/Diploma Institutions. The only reply given by learned AGP is that it is a policy decision. However, why such policy decision is taken by the respondent-State is not reflected anywhere. 10. This Court is aware about the scope of judicial review of policy decision taken by the State Government. However if the policy decision of the government is arbitrary and violative of Article 14 of Constitution of India this Court can certainly interfere with the said arbitrary decision. 10. This Court is aware about the scope of judicial review of policy decision taken by the State Government. However if the policy decision of the government is arbitrary and violative of Article 14 of Constitution of India this Court can certainly interfere with the said arbitrary decision. Therefore, in absence of any justification for not implementing the notification of AICTE issued on 30.12.1999 qua the petitioners, such decision is required to be interfered with. It is further revealed from the record that number of other State Governments have implemented the recommendations of AICTE as per notification dated 30.12.1999 and therefore also there is no justification for the respondent-State to deny such benefit to the present petitioners. 11. In the case of Shailesh M. Jani (supra) relied on by learned advocate for the petitioners, this Court in similar type of matter after considering the earlier decisions rendered by this Court observed in paragraph 9 to 13 as under: "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. 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. 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. 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. My attention was also invited to the judgment of this court in the case of M.S. Pandya vs. 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. 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. 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." 12. Thus, in view of the aforesaid discussion, these petitions are allowed. Government Resolution dated 20.6.2001 by which the cadre of Librarians in Diploma Level Institutions is excluded, is declared arbitrary and violative of Articles 14 and 16 of the Constitution of India. The respondent-state is therefore directed to accept the recommendation of AICTE given in its notification dated 30.12.1999 with regard to the pay scale of the Librarians working in Diploma Level Institutions and thereby the State is also directed to give the effect of the said notification with effect from 1.1.1996 to each of the petitioners and thereby fix the revised pay scale of Rs. 8000-275-13500. The State is further directed to pay the difference of salary to the petitioners from the date of issuance of resolution dated 20.6.2001 within a period of 12 weeks from the date of receipt of the order. All the petitions are allowed in the aforesaid terms. Rule is made absolute.