Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 315 (GUJ)

Bhartiben Nandkishor Dave v. State of Gujarat

2019-04-05

A.S.SUPEHIA

body2019
ORDER : A.S. Supehia, J. 1. The present writ petition has been filed by the petitioner challenging the inaction on the part of the respondent authorities in not granting the benefit of superannuation age of 62 years as per the notifications of the University Grants Commission (UGC) dated 19.11.2006 and 06.11.1998 and Government Resolutions dated 29.04.1999 and 26.05.1999. Further directions are sought for quashing and setting aside the order/letter dated 12.03.2007 addressed by respondent No. 3 to respondent No. 4 directing the respondent No. 4 to superannuate the petitioner on 31.03.2007 and also quashing and setting aside the office order dated 30.06.2007 passed by the respondent No. 2 and the order dated 02.07.2007 passed by the respondent No. 4. 2. The petitioner was serving as librarian in the Nursing College, Civil Hospital Campus, Ahmedabad i.e. under the respondent No. 4. It is the case of the petitioner that she is entitled to be retired at the age of 62 years instead of 58 years and accordingly she requested the respondent authorities to increase her retirement age. By the representation dated 22.01.2007 written to the Additional Director, Medical Services Education Research Department, Gandhinagar, the petitioner requested to give the benefits as per the judgment dated 28.08.2002 passed in Special Civil Application No. 946 of 1989 and also the benefits of the UGC notification and accordingly retire her after attaining the age of 62 years. On 12.03.2007, the Additional Director informed the Principal of the college under whom the petitioner was working to retire her at the age of 58 years on 31.03.2007. It is the case of the petitioner that she is entitled to get the benefits of the Resolution dated 29.04.1999 issued by the State of Gujarat, Education Department. 3. Learned advocate Mr. Chauhan appearing for the petitioner has referred to the said Resolution dated 29.04.1999 issued by the State of Gujarat, Education Department regarding revision of pay scales of teachers, librarians and Physical Education Personnel in Universities and Government and Non-Government colleges as well as prescribing their age of superannuation of 62 years. He has submitted that the petitioner was serving under the respondent No. 4-college which is affiliated and run by the Gujarat University-respondent No. 5 and thus, the aforesaid Resolution is applicable to the petitioner and hence she is entitled to be retired at the age of 62 years as envisaged therein. 3.1. Learned advocate Mr. He has submitted that the petitioner was serving under the respondent No. 4-college which is affiliated and run by the Gujarat University-respondent No. 5 and thus, the aforesaid Resolution is applicable to the petitioner and hence she is entitled to be retired at the age of 62 years as envisaged therein. 3.1. Learned advocate Mr. Chauhan has further invited the attention of this Court to the Circular No. 42 issued by the Gujarat University on 08.11.2006 addressed to the Principal of Nursing College, Civil Hospital Campus, Ahmedabad for laying down the course of such colleges. He has also pointed out the list of the affiliated colleges to the University and name of the respondent No. 4-college figured therein. 3.2. Learned advocate Mr. Chauhan has placed reliance on the judgment of this Court rendered in the case of N.C. Patel v. State reported in 1983 (2) GLR 1526 : (1984 Lab IC (NOC) 103 (Guj)), wherein this Court has held that librarians of the colleges under the Health and Family Planning Department are also entitled to the same pay scale, who are working under the Education Department. He has further pointed out that the judgment delivered by this Court dated 28.08.2002 in Special Civil Application No. 6961 of 1989, wherein the writ petition filed by the Gujarat Medical Library Association was allowed and the respondents were directed to extend the benefits of the Resolution issued by the Education Department to the librarians working in the Government Medical, Dental and Nursing Colleges affiliated to different Universities in the State of Gujarat. He has submitted that the aforesaid directions were complied with by the State Government. Further, he has placed reliance on the judgment dated 18.04.1986, passed in Special Civil Application No. 872 of 1985, wherein on similar issue, this Court has granted the benefits of revision of pay to the librarians working under the colleges affiliated to the Gujarat University. The said judgment was confirmed by the Division Bench vide order dated 23.10.1989 passed in Letters Patent Appeal No. 79 of 1988. 3.3. Learned advocate Mr. Chauhan has referred to me communication dated 11.07.2005 issued by the Education Department specifying that the age of the superannuation of the employees of the Universities under the Government of Gujarat is required to be fixed as per the Government Resolution issued by the Education Department dated 29.04.1999. 3.4. It is submitted by Mr. 3.3. Learned advocate Mr. Chauhan has referred to me communication dated 11.07.2005 issued by the Education Department specifying that the age of the superannuation of the employees of the Universities under the Government of Gujarat is required to be fixed as per the Government Resolution issued by the Education Department dated 29.04.1999. 3.4. It is submitted by Mr. Chauhan that the petitioner could not have been retired at the age of 58 years in view of the aforesaid judgments and the Resolution of the State Government. 4. Learned AGP Mr. Vishrut Jani appearing for the respondent-State has submitted that the petitioner is not entitled to the benefits as prayed for in the petition claiming to retire her at the age of 62 years, since the employees who are working under the Health Department are not entitled to get the benefits of the Resolution passed by the Education Department. He has submitted that the petitioner was working as librarian in the Nursing College, Civil Hospital Campus, Ahmedabad and her case cannot be considered at part with the case of the librarians working under the Education Department. It is further submitted that the petitioner cannot be granted the same pay scale on the principle of 'equal pay equal work' and she cannot claim the benefits on the basis of the said doctrine because of the nature of work. 4.1. Finally, it is submitted by learned AGP Mr. Jani that in case this Court concludes that the petitioner has right to be retired at the age of 62 years, then her period from 58 to 62 years may be considered notional as she is not entitled to salary on the principle of 'no work no pay'. Reliance is placed on the observations made by the co-ordinate Bench of this Court in the judgment dated 15.06.2006, passed in Special Civil Application No. 4047 of 1999. It is further pointed out by the learned AGP Mr. Jani that the aforesaid judgment is set aside by the Division Bench in Letters Patent Appeal No. 1897 of 2007 in the judgment dated 27.07.2011. It is further pointed out by the learned AGP Mr. Jani that the aforesaid judgment is set aside by the Division Bench in Letters Patent Appeal No. 1897 of 2007 in the judgment dated 27.07.2011. He has submitted that the Division Bench has specifically stated that the teachers appointed in the colleges affiliated to the Universities are governed by the concerned Universities Act and the Ordinance, whereas the teachers who working in Government Colleges are governed by the Bombay Civil Service Rules, Gujarat Civil Service (Discipline & Conduct) Rules, 1971 and Gujarat Civil Service (Conduct) Rules, 1971, and hence cannot be treated at par with the teachers of the colleges affiliated to the Universities. 5. Learned advocate Mrs. V.D. Nanavati appearing for the respondent No. 5 has adopted the arguments made by the learned AGP Mr. Jani. 6. I have given my thoughtful consideration to the submissions advanced by the learned advocates for the parties. 7. The facts which are not in dispute are that the petitioner was serving as librarian under the respondent No. 4-Nursing College, Civil Hospital Campus, Ahmedabad. The same is affiliated to the Gujarat University. The Education Department of the State Government issued the Resolution dated 29.04.1999 prescribing the pay scales/age of superannuation of the teachers, librarians and physical education personnel in Universities and Government and Non-Government colleges. The preamble of the said resolution reads thus: "Resolution:-- Government has issued orders regarding revision of pay scales of teachers, librarians, and Physical Education Personnel in Universities and Government and Non-Government, colleges and other measures for maintenance of standards in Higher Education vide Government Resolution Education Department dated 7.9.1998 shown at Sr. No. 1 in the preamble. Government of India has decided to make certain modifications in the scheme vide its letters dated 6.11.1998 shown against Sr. No. 2 in the preamble." 8. Clause 3 of the aforesaid Resolution prescribing for age of superannuation reads thus: "3. Age of Superannuation:-- The age of superannuation of 62 years indicated in para-(1)(vi) of the appendix, appended to the G.R. Dated 7th September, 1998 under reference shall also be applicable to Registrars, Librarians, Physical Education Personnel, Controllers of Examinations, Chief Accounts Officers/Finance Officers and such other University employees, who are being treated at par with the teachers and whose age of superannuation was 58/60 years." 9. It is not in dispute that the respondent No. 4 is the Government College and is also affiliated to the Gujarat University. In the aforesaid Resolution the age of superannuation of the librarians working under the Universities as well as Government and Non-Government Colleges has been enhanced from 58 to 62 years in view of the UGC regulation. Hence, the same will apply to the petitioner also. 10. In the communication dated 11.07.2005, the Education Department while informing to the Vice Chancellor, Hemchandracharya North Gujarat University, Patan, has made it clear that the Circular dated 21.05.2005, issued by the Education Department which has stipulated that the superannuation age of employees of Universities under Government of Gujarat is cancelled void ab initio vide Circular dated 08.07.2005. Hence, the Government Resolution dated 29.04.1999 issued by the Education Department, Government of Gujarat, stands valid and in force. 11. This Court in the case of N.C. Patel (1984 Lab IC (NOC) 103 (Guj)) (supra) has negatived the contention of the State Government that the medical colleges and 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 Court way back in the year 1983 has held that the Government Resolution of Education Department will be applicable to the librarians working in the Government and non-Government medical colleges and the Pharmacy College. The Court in the said case has held thus: "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 scales of Rs. 550-25-750-EB-30-990 with effect from 1-1-1983. 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 today 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." 12. The said amount shall be payable by the respondent-State. Rule is made absolute with no order as to costs." 12. Thereafter, in the case of Gujarat Medical Library Association in Special Civil Application No. 6961 of 1989 by the judgment dated 28.08.2002, the Court once again reiterated that the Government Resolution issued by the Education Department is applicable to the librarians of the Health and Family Welfare Department. 13. In the judgment dated 18.04.1986, passed in Special Civil Application No. 872 of 1985 this Court has observed that the librarians under the colleges affiliated to the Gujarat University are entitled to the pay scale of those librarians of the universities and college teachers and they are entitled to same treatment to the teachers of colleges of the University. The said judgment was confirmed by the Division Bench in Letters Patent Appeal No. 79 of 1988 vide order dated 23.10.1989. 14. It is not in dispute that the UGC prescribed me superannuation age of Registrars, Librarians, physical education personnel, Controllers of Examinations, Chief Accounts Officers/Finance Officers and such other University employees is 62 years. The same has been adopted by the State Government vide Resolution dated 29.04.1999 issued by the Education Department. Thus, as per the law settled by this Court in the aforesaid judgments, the stand taken by the State Government that the Resolution passed by the Education Department is not applicable to the present petitioner who works under the Health Department is misconceived. Even if it is presumed that the college in which the present petitioner was working comes under the Health Department, the claim of the petitioner cannot be denied in view of the judgments of this Court which has held that the Resolution of Education Department are applicable to the librarians working under the Health Department, and hence the benefits of Resolution dated 29.04.1999 envisaging the date of superannuation as 62 years cannot be denied to the present petitioner. 15. The reliance placed by the learned AGP Mr. Jani on the Division Bench judgment cannot come to his rescue, since before the Division Bench, the Resolution dated 26.05.1999 was under consideration, which specifically provides that the revision of pay scales of teachers, librarians, Physical Education Personnel in degree engineering colleges and other degree level institutions are not applicable to Government and Non-Government institutes. Jani on the Division Bench judgment cannot come to his rescue, since before the Division Bench, the Resolution dated 26.05.1999 was under consideration, which specifically provides that the revision of pay scales of teachers, librarians, Physical Education Personnel in degree engineering colleges and other degree level institutions are not applicable to Government and Non-Government institutes. The perusal of the resolution dated 26.05.1999 reveals that the same is not applicable to the Government or non-Government colleges and the recitals and applicability of both the Resolutions dated 29.04.1999 and 26.05.1999 are different. 16. In the instant case the Resolution dated 29.04.1999 is made applicable to the librarians and other persons of University, Government and non-Government colleges, whereas the same is absent in the Resolution dated 26.05.1999 and the benefits of the Resolution dated 26.05.1999 is extended to the teachers, librarians, physical education personnel in degree engineering colleges and other degree level institutions. Hence, the Division Bench while considering the provisions of the Resolution dated 26.05.1999 has held that the teachers working in the Government Colleges are not entitled to such benefits, which are extended to the Engineering Colleges. Thus, the judgment dated 27.07.2011 passed by the Division Bench in the Letters Patent Appeal No. 1897 of 2007 will not apply to the facts and resolutions of the present case. 17. On the bedrock of the aforesaid analysis and observations, the impugned orders dated 12.03.2007 and 30.06.2007 are hereby quashed and set aside. The service of the petitioner from 58 to 62 years shall be treated as notional. However, the pension and retiral benefits shall be fixed on the basis of notional pay and the same shall be revised and paid accordingly, as if the petitioner has superannuated at the age of 62 years i.e. on 31.03.2011. 18. As regards the prayer made for the back wages is concerned, the same is rejected, since the interim order passed by this Court continuing the petitioner in service was stayed by the Division Bench in Civil Application - For Stay No. 6259 of 2007 in Letters Patent Appeal No. 605 of 2007 vide order dated 30.04.2007. Thereafter, after hearing the parties, the Division Bench vide order dated 11.07.2007 passed in Civil Application - For Stay No. 6259 of 2007 has confirmed the interim order and it was observed that the same shall remain operative till hearing of the Appeal. Thereafter, after hearing the parties, the Division Bench vide order dated 11.07.2007 passed in Civil Application - For Stay No. 6259 of 2007 has confirmed the interim order and it was observed that the same shall remain operative till hearing of the Appeal. The interim order dated 11.07.2007 has become final and the same has not been further challenged by the petitioner. Ultimately, the Letters Patent Appeal was decided on 22.02.2010. Thus, in view of the order passed by the Division Bench precluding the petitioner from serving further the back wages are denied. 19. Necessary orders in terms of the observations made by this Court re-fixing the retirement benefits of the petitioner and granting the same to the petitioner shall be passed within a period of two months from the date of receipt of writ of this order. The present petition is allowed accordingly. Rule is made absolute.