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Gujarat High Court · body

2017 DIGILAW 877 (GUJ)

Gujarat Ayurved University v. Shailesh M. Jani

2017-04-25

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 29.02.2016 passed in Special Civil Application No. 17599 of 2003, by which, the learned Single Judge has allowed the said Special Civil Application preferred by the respondent No. 1 herein by quashing and setting aside order dated 5.11.2003 passed by the respondent authority and has held that original petitioner is entitled to benefit of revision of pay scale as per the UGC as per the Government Resolution dated 06.06.1989, the original respondent No. 3 - Gujarat Ayurved University has preferred the Letters Patent Appeal. 2. The facts leading to the present Letters Patent Appeal are in nutshell are as under: 2.1. That pursuant to the advertisement issued by the appellant herein (hereinafter referred to as the original respondent No. 3) on 25.12.1987 inviting application for the post of Librarian, the respondent No. 1 (hereinafter referred to as the "original petitioner") submitted the application. That the original petitioner was having qualification of M.A./M/Ed and BLI (Science). That after following due procedure, the original respondent No. 3 University appointed the original petitioner on the Librarian by order dated 17.08.1985 in the department of post Graduate Teaching and Research of the University in the pay scale of Rs. 500-900. According to the original petitioner, the pay scale of the Librarian in different faculties under the control of held department like Medical Ayurved etc. were fixed at Rs. 550-900 w.e.f. 1.1.1973 and the pay scale of the petitioner came to be fixed on 27.07.1987 in the pay scale of Rs. 1640-2900 under the Revision of Pay Rules of 1987. That thereafter, the original petitioner was given higher grade scale on completion of 9 years of service under its order dated 22.1.1994, though on that day the petitioner was entitled to get his pay revised as per UGC scale adopted by the State Government in his resolution dated 6.6.1989. 2.2. That after 1987/1984, the UGC prescribed new scale for the Librarian and other teaching staff for all the universities and directed the State Government to give effect to the said revision of pay scale and consequently, the Government - original respondent No. 1 issued the Government Resolution dated 06.06.1989 revising the pay scale of Librarian including those who were working in the University and Colleges at Rs. 700-1600 w.e.f. 1.4.1980 and at Rs. 2200-4000 w.e.f. 1.1.1986 on certain terms and conditions. According to the original petitioner, as he was already working in the Librarian in the University and had become entitled to get same pay scale as he was otherwise qualified. and possessing necessary qualifications as provided in the said Government Resolution. That thereafter and subsequently by Government Resolution dated 27.06.1991, the original respondent No. 1- State Government decided to give benefit of senior/selection grade at the pay scale of Rs. 3000-5000 to all the Librarians who were getting UGC scales at Rs. 2200-4000 with certain reservation. According to the petitioner, if he had been given the benefit of Government Resolution dated 06.06.1989 and put in the pay scale of Rs. 2200-4000, he would have become eligible to get benefit of selection grade as provided in the Government Resolution dated 27.06.1991. According to the petitioner, time and again he requested to grant the benefit of UGC scale and the Government Resolution dated 06.06.1989 and thereafter to extend the selection grade as provided by the Government Resolution dated 27.06.1991, no decision was taken. That the pay scale of the Librarian thereafter came to be revised again w.e.f. 1.1.1996 at the instance of the UGC under the Resolution issued by the State Government on 07.09.1998 and 16.12.2000 revising the pay scale of the Librarian of Ayurvedic faculty to Rs. 12,000 -18,300, where again the selection grade was extended to the Librarian who completed 16 years of service by revising their pay scale to Rs. 12,000 to 18,300, for which, the petitioner had become entitled, if initial orders of revision of pay scale were passed under the Government Resolution dated 06.06.1989. 2.3. According to the petitioner, the petitioner made several representations to the University and State Government to remove the anomaly and to pass necessary order revising his pay, to which, he was legally entitled to, however respondent Nos. 1 and 2 did not take any decision. 2.4. That thereafter, the petitioner served a statutory notice to all the original respondents on 29.11.2002 and since there was no response from the State Government inspite of letter dated 22.01.2003 given by the University, requesting the Department of Health to resolve the dispute, the petitioner preferred Special Civil Application No. 10318 of 2003. 2.4. That thereafter, the petitioner served a statutory notice to all the original respondents on 29.11.2002 and since there was no response from the State Government inspite of letter dated 22.01.2003 given by the University, requesting the Department of Health to resolve the dispute, the petitioner preferred Special Civil Application No. 10318 of 2003. That the learned Single Judge of this Court disposed of the said Special Civil Application by directing the original respondent to dispose of the pending representations within a period of two months. 2.5. That thereafter, the State Government passed an order impugned in the petition dated 5.11.2003 rejecting the representation of the petitioner on the ground that he was not holding the requisite educational qualification as provided in the Government Resolution dated 06.06.1989. 2.6. Feeling aggrieved and dissatisfied with the order dated 05.11.2003 of the State Government, the original petitioner preferred Special Civil Application No. 17599 of 2003 before this Court and the learned Single Judge by impugned judgment and order has allowed the said Special Civil Application and has directed to give the benefit of revised pay scale as per the UGC to the petitioner as per Government Resolution dated 06.06.1989. 2.7. It appears that thereafter, the State Government preferred review application before the learned Single Judge, which came to be dismissed on the ground that there is no error apparent. That thereafter, as the entire financial burden to pay the arrears of the pay scale as per the Government Resolution dated 06.06.1989, which runs into lakhs of rupees came upon the appellant - University, the original respondent No. 3 Gujarat Ayurved University has preferred the present Letters Patent Appeal. 3. Shri Dipak G Shukla, learned advocate has appeared on behalf of the appellant herein - original respondent No. 3-Gujarat Ayurved University and Shri Asim Pandya, learned advocate has appeared on behalf of the original petitioner. 4. Shri Shukla, learned advocate for the appellant has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in allowing the petition and in holding that the original petitioner is entitled to revision of pay scale as per the Government Resolution dated 06.06.1989. 4.1. 4. Shri Shukla, learned advocate for the appellant has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in allowing the petition and in holding that the original petitioner is entitled to revision of pay scale as per the Government Resolution dated 06.06.1989. 4.1. Shri Shukla, learned advocate for the appellant has submitted that the learned Single Judge ought to have appreciated that original petitioner claimed the monetary benefit w.e.f. 1.1.1986 by preferring the petition in the year 2003 i.e. after a period of more than 17 years. It is submitted that therefore, the learned Single Judge ought to have rejected the petition only on the ground of delay and laches. It is submitted that by impugned judgment and order in granting benefit of revised pay scale as per the Government Resolution dated 06.06.1989 and other Government Resolutions w.e.f. 1.1.1986, there shall be a huge financial burden upon the appellant- Ayurved University who is not engaged in any commercial or business activity. 4.2. It is further submitted that even otherwise, the learned Single Judge ought not to have allowed the petition and ought not to have held that the original petitioner is entitled to benefit of revision of pay scale of Government Resolution dated 06.06.1989, as he was not possessing educational qualification as per the said Government Resolution. 4.3. It is further submitted by Shri Shukla, learned advocate for the appellant that the learned Single Judge ought to have appreciated the submission on behalf of the University as well as State Government that original petitioner employee was not possessing/holding the requisite educational qualification as per the Government Resolution dated 06.06.1989 for the post of Librarian and therefore, he would not have been entitled for the benefit of UGC pay scale and the Government Resolution. 4.4. It is further submitted by Shri Shukla, learned advocate for the appellant that even subsequently original respondent Nos. 1 and 2-Authorities preferred Miscellaneous Civil Application (for Review) No. 2144 of 2016 pointing out that as the petitioner employee was not possessing requisite qualification i.e. M.A with First or Second Class as per the Government Resolution dated 06.06.1989 but was possessing MA with pass class only, the learned Single Judge without taking into consideration the factual aspect of not possessing the essential Education Qualification by the original petitioner had rejected the said Review Application. 4.5. 4.5. It is submitted that as the original petitioner was not possessing the requisite educational qualification as per the Government Resolution dated 06.06.1989 and that he was possessing MA with pass class only and what was required was MA with First Class or Second Class, the learned Single Judge ought to have rejected the petition. Making above submissions, it is requested to allow the present Letters Patent Appeal. 5. Present Letters Patent Appeal is vehemently opposed by Shri Asim Pandya, learned advocate for the original petitioner. 5.1. It is vehemently submitted by Shri Pandya, learned advocate for the original petitioner that as such the appellant University is not entitled to challenge the impugned judgment and order since it has chosen not to contest/defend the petition. It is submitted that apart the University itself recommended the grant of UGC Pay Scale to the original petitioner. It is submitted that therefore, when University in fact recommended the case of the petitioner to the State Government for grant of UGC pay scale, thereafter it is not open for the appellant to contend to the contrary and therefore, University is now estopped from changing its stand. 5.2. It is further submitted by Shri Pandya, learned advocate for the original petitioner that even otherwise University has its own service rules duly enacted and approved by its own syndicate. It is submitted that when the petitioner was appointed in the year 1985 his appointment was made on the post of Librarian, strictly in accordance with service rules of the university. It is submitted that the service rules provides the qualification of degree from recognized university with the Library Science and the pay scale fixed was Rs. 500-900. It is submitted that petitioner possesses the degree of Library Science with first class and two Master Degree i.e. M.Ed with higher Second Class and M.A with pass class. It is submitted that University has adopted the resolution dated 06.06.1989 only to the extent of the applicability of UGC pay scale. It is submitted that the University has not amended its Service Rules for the post of Librarian as it had happened in respect of the Librarians to be appointed with Government Ayurved Colleges. It is submitted that University has adopted the resolution dated 06.06.1989 only to the extent of the applicability of UGC pay scale. It is submitted that the University has not amended its Service Rules for the post of Librarian as it had happened in respect of the Librarians to be appointed with Government Ayurved Colleges. It is submitted that therefore, unless and until the Service Rules of the Librarian are amended by the syndicate of the university, the insistence to acquire the qualification/eligibility criteria prescribed in Schedule 1 to the resolution dated 06.06.1989 is unwarranted in respect of the Librarian who is still governed by independent service rules of the university. It is submitted that therefore, the University rightly interpreted the Resolution dated 06.06.1989 and rightly recommended the case of the petitioner for extending the benefit of UGC Pay Scale to him. 5.3. It is further submitted by Shri Pandya, learned advocate for the original petitioner that as per the Resolution dated 06.06.1989, the condition No. 2 specifically states that Librarian appointed after 29.12.1983 if fails to obtain the requisite eligibility within five years, in that event the Librarian would not be entitled to increments in the UGC Pay Scale. It is submitted that therefore, without prejudice to the aforesaid contentions and alternatively, it is submitted that the petitioner is entitled to UGC pay scale as amended from time to time without the benefit of increments as per the aforesaid conditions. It is submitted that however, it is absolutely wrong to deny the UGC pay scale altogether to the petitioner. It is submitted that University is therefore, required to be directed to calculate the benefits flowing from the extension of the UGC pay Scale as amended from time to time to the petitioner without the benefit of increments and pay the arrears to the petitioner as directed by the learned Single Judge. 5.4. It is submitted that University is therefore, required to be directed to calculate the benefits flowing from the extension of the UGC pay Scale as amended from time to time to the petitioner without the benefit of increments and pay the arrears to the petitioner as directed by the learned Single Judge. 5.4. In the alternatively, it is submitted that since for the first time at appellate stage the University has raised the legal and factual contention, if at all this Court is not inclined to accept the submission made on behalf of the original petitioner recorded herein above, then the matter is required to be remanded to the learned Single Judge with a direction to the Appellate Authority to file affidavit in reply to the petition and the original petitioner should be given an opportunity either to file rejoinder and/or amend the original petition to challenge the legality and validity of the resolution dated 06.06.1989. 5.5. Now, so far as the submission on behalf of the appellant University that the learned Single Judge ought to have dismissed the petition on the ground of delay and laches is concerned, it is submitted that no such contention was taken before the learned Single Judge. It is submitted that even otherwise documents at Annexure F collectively and G to the petition clearly shows that the petitioner was pursuing his demand to get UGC pay Scales since January 1992 and since there was positive recommendation of the University, the original petitioner thought it fit to await. Making above submissions, it is requested to dismiss the present Letters Patent Appeal. 6. Heard the learned advocates for the respective parties at length. We have gone through the impugned judgment and order passed by the learned Single Judge. We have also gone through and considered in detailed the Government Resolution dated 06.06.1989, upon which, the original petitioner based his claim as well as other resolutions. We have also perused and considered the decision of the State Government impugned in the main petition. 7. At the outset, it is required to be noted that before the learned Single Judge original petitioner claimed the revised pay scale as per the Government Resolution dated 06.06.1989. It appears that according to the original petitioner, as per the Government Resolution dated 06.06.1989 all those Librarians who were in pay scale of Rs. 7. At the outset, it is required to be noted that before the learned Single Judge original petitioner claimed the revised pay scale as per the Government Resolution dated 06.06.1989. It appears that according to the original petitioner, as per the Government Resolution dated 06.06.1989 all those Librarians who were in pay scale of Rs. 500-900 shall be entitled to UGC pay scale of Rs. 700-1600 w.e.f. 1.4.1980 and in the pay scale of Rs. 2200-4000 w.e.f. 1.1.1986 (as per the revised UGC Pay Scale). Therefore, it was the case on behalf of the petitioner that petitioner was entitled to revised UGC pay scale of Rs. 2200-4000 w.e.f. 1.1.1986. However, it is required to be noted that the said resolution and the grant of revised UGC pay scale of Rs. 2200-4000 was subject to certain terms and conditions. Therefore, what is required to be considered is whether the original petitioner is entitled to benefit of revised UGC pay scale of Rs. 2200-4000 as per the Government Resolution dated 06.06.1989 and whether he fulfills all the conditions mentioned in the Government Resolution dated 06.06.1989. 7.1. On considering the Government Resolution dated 06.06.1989, upon which, the petitioner has based his claim, it appears that the resolution was passed to grant benefit of revised UGC pay scale of Rs. 2200-4000 to the Librarian working in the Ayurved Colleges on fulfilling followings conditions: "(1). Those Librarians who were in service as on 19.12.1983 are not required to obtain requisite Educational qualification as per the Schedule I to the Resolution dated 06.06.1989 and all those Librarians shall be entitled to pay scale of Rs. 700-1600 w.e.f. 1.4.1980. (2). Those Librarians appointed after 19.12.1983 shall be entitled to pay scale of Rs. 700-1600 if they obtained requisite qualification as per the Schedule I to the Government Resolution dated 06.06.1989 within five years. If they failed to obtain the requisite qualification within five years those Librarians shall not be entitled further increment in the revised pay scale." 7.2. The requisite qualification as per the schedule to the Government Resolution dated 06.06.1989 is as under: A.1. First or Second Class in BA/B.Sc/B.com degree plus + First of Second Class in Post-graduate Librarian Science degree OR A.2 First or Second Class in MA/M.sc/M.com degree plus + First or Second class in Librarian Science Graduate Degree or Second class in Librarian Science Diploma." 7.3. First or Second Class in BA/B.Sc/B.com degree plus + First of Second Class in Post-graduate Librarian Science degree OR A.2 First or Second Class in MA/M.sc/M.com degree plus + First or Second class in Librarian Science Graduate Degree or Second class in Librarian Science Diploma." 7.3. It is an admitted position that the original petitioner is having requisite qualification of Library Science with First Class and MA with pass class. Therefore, his case would not fall in the category A-1, but his case would fall under category A-2. Therefore, requisite qualification would be first or second class in MA + first or second class in Library Science Degree. Therefore, when he is having the qualification of MA with pass class, it cannot be said that he was having requisite qualification as per Government Resolution dated 06.06.1989 (Schedule 1). It is an admitted position that he had not obtained requisite qualification as per the Schedule 1 of the Government Resolution dated 06.06.1989 within five years from the Government Resolution dated 06.06.1989. Therefore, the original petitioner shall not be entitled to UGC revised pay scale of Rs. 700-1600 as per the Government Resolution dated 06.06.1989. Therefore, as such learned Single Judge materially erred in holding and consequently directing the original respondent to grant the benefit of revised UGC pay scale to the original petitioner as per Government Resolution dated 06.06.1989. 7.4. From the impugned judgment and order passed by the learned Single Judge, it appears that what has been weighed with the learned Single Judge is that the original petitioner was appointed in the year 1985; he was having the requisite qualification of Librarian and he was appointed after following due procedure. However, it is required to be noted that when the original petitioner was appointed, he was in the pay scale of Rs. 500-900 and as per the requisite qualification of the University. However, for the purpose of revision of pay scale as per UGC, the requisite qualification was as mentioned herein above. Therefore, what is required to be considered is whether for getting benefit of revision of pay scale of UGC as per the Government Resolution dated 06.06.1989, the petitioner was having requisite qualification as per the schedule 1 to the Government Resolution dated 06.06.1989 or not. Therefore, what is required to be considered is whether for getting benefit of revision of pay scale of UGC as per the Government Resolution dated 06.06.1989, the petitioner was having requisite qualification as per the schedule 1 to the Government Resolution dated 06.06.1989 or not. The question is not with respect to appointment on the post of Librarian but is with respect to the grant of revision of UGC pay scale as per the Government Resolution dated 06.06.1989. As observed herein above, the original petitioner does not fulfill the condition as per the Government Resolution dated 06.06.1989 i.e. not possessing the first or second class in MA but was having qualification of MA with pass class only and therefore, the State Government rightly passed the order dated 5.11.2003 impugned in the main petition. Therefore, learned Single Judge has materially erred in holding that the original petitioner shall be entitled to revised UGC pay scale as per the Government Resolution dated 06.06.1989. 8. Now, so far as submission on behalf of the original petitioner that as the University recommended the case of the petitioner and recommended that the original petitioner is entitled to the revised UGC pay scale and therefore, it is not open for the appellant University to take a different stand and challenge to the impugned order is concerned, at the outset, it is required to be noted that what is required to be considered is whether the original petitioner is entitled to the revised UGC pay scale as per the Government Resolution dated 06.06.1989. His entitlement does not depend upon the interpretation and/or stand taken by the University. If the original petitioner is found to be not entitled to the revised UGC pay scale as per the Government Resolution dated 06.06.1989, in that case, when entire financial burden as per the judgment and order passed by the learned Single Judge would be upon the appellant University which comes to Lakhs of rupees as having been granted from 1.1.1986 and the University is not engaged in any commercial or business activities, it is always open for the appellant University to challenge the decision, if implemented would have a large financial burden upon the appellant. Even otherwise, as per the cardinal principle of law, there cannot be any estoppel against the statute and any concession contrary to the Government Resolution dated 06.06.1989 shall not bind the appellant. 9. Even otherwise, as per the cardinal principle of law, there cannot be any estoppel against the statute and any concession contrary to the Government Resolution dated 06.06.1989 shall not bind the appellant. 9. Now, so far as the submission on behalf of the original petitioner that University had its own Rules and Regulations and therefore, when the original petitioner was having requisite qualification as per the Rules framed by the University and therefore, the petitioner cannot be denied the revision of UGC pay scale on the ground that he was not having requisite qualification as per Government Resolution dated 06.06.1989 is concerned, the aforesaid has no substance. It is required to be noted that the grant of revision of UGC pay scale should be as per the educational qualification prescribed by the UGC. Even the original petitioner has based his claimed entirely on Government Resolution dated 06.06.1989. Therefore, when it is found that the original petitioner does not fulfill the condition mentioned in Government Resolution dated 06.06.1989, he shall not be entitled to any revision of UGC pay scale as per the Government Resolution dated 06.06.1989. Under the circumstances, the learned Single Judge has materially erred in allowing the petition and directing the original respondents including the appellant herein to grant revised UGC pay scale as per the Government Resolution dated 06.06.1989 w.e.f. 01.01.1986. 10. Now, so far as alternative submission made on behalf of the original petitioner that to remand the matter to the learned Single Judge so that the original petitioner may amend the petition by challenging the Government Resolution dated 06.06.1989 is concerned, at the outset, it is required to be noted that as such there is no question of challenging the Government Resolution dated 06.06.1989 by the original petitioner. It is required to be noted that as such entire claim of the original petitioner before the learned Single Judge and all throughout was based on the Government Resolution dated 06.06.1989. Under the circumstances, no question of challenge to the Government Resolution dated 06.06.1989 by the petitioner as he himself has all throughout based his claim on the Government Resolution dated 06.06.1989. 11. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the learned Single Judge dated 29.02.2016 passed in Special Civil Application No. 17599 of 2003 is hereby quashed and set aside. 11. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the learned Single Judge dated 29.02.2016 passed in Special Civil Application No. 17599 of 2003 is hereby quashed and set aside. The present appeal is allowed to the aforesaid extent. In view of order passed in Letters Patent Appeal, Civil Application stands disposed of accordingly.