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Gujarat High Court · body

2022 DIGILAW 924 (GUJ)

D. M. NIMAVAT v. STATE OF GUJARAT

2022-08-02

A.Y.KOGJE

body2022
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India is filed by the petitioner seeking direction to quash and set aside the order dated 27.03.2008 passed by the respondent No. 2 and further directed the respondents to grant UGC payscale of Rs.8000/- to RS.13,500/- to the petitioner from the date of his absorption on 01.01.2009 and also to treat the petitioner to have superannuated upon attaining the age of 60 years instead of 58 years and consequently revise the pensionary benefits with interest at the rate of 12% interest. 2. It is the case of the petitioner that the petitioner who was employee in the Government service and the department in which the petitioner was working was merged with the respondent No. 2 university and as the petitioner was having the qualification equivalent to the qualification of the teaching staff, he claimed to be entitled to the same pay-scale approved by the UGC and also to get all the benefits including enhanced date of retirement. The basis of the claim of the petitioner is that the petitioner was having the same qualification and has discharged the duty similar to that of the teaching staff which is given UGC scale. 3. Learned advocate appearing for the petitioner by drawing attention of this Court at Annexure-A submitted that Mundra Fisheries Farm which was Department of Fisheries was converted into a part of agricultural university and the petitioner has given an option where the petitioner was given the post of Assistant Research Officer, (permanent) on the payscale of Rs.6500 to Rs.10,500/-. 4. Learned advocate then drew attention of this Court to Annexure-C to submit that as per the office order, option was to be exercised whether to continue with the Fisheries Department or to attach with Gujarat Government University. Accordingly, the petitioner exercising such option was placed under the Gujarat Agriculture University as Assistant Research Officer. 4.1 Learned advocate submitted that the Agriculture University had meeting on 20.08.1999 by the Board of Governor and had taken decision to send the proposal for redesignation of the posts in the agriculture university. He also drew attention of this Court to the recommendation by the Vice Chancellor to the Secretary with regards to the decision of Board of Governor for re-designation. He also drew attention of this Court to the recommendation by the Vice Chancellor to the Secretary with regards to the decision of Board of Governor for re-designation. According to the proposal, appropriate re-designation for the purpose of the petitioner i.e. Assistant Research Officer in the pay-scale of Rs.6500/- to 10500/- was to be re-designated in the university as Assistant Research Officer teaching with the pay-scale of Rs.8,000/- to Rs.13,500/-. It is the case of the petitioner that this recommendation was required to be accepted and benefit accordingly to be given to the petitioner by treating him to be a teaching staff. Learned advocate has submitted that by considering such claim this Court on 21.11.2006 has passed an order in Special Civil Application No. 23768 of 2006 for making representation and to consider the case of the petitioner. Learned advocate has thereafter, referred to the communication dated 13.11.2007 by the Indian Council of Agricultural Research to submit that in view of this communication, the case of the petitioner deserves to be considered favourably. 5. As against this, learned advocate appearing for the respondent opposing the petition by relying upon the affidavit-in-reply on behalf of respondent No. 2-University submitted that the post of Assistant Research Officer/Fisheries Superintendent was re-designated as Assistant Research Scientist in upgraded pay-scale of Rs.8000-13500. Thereafter Respondent No. 2 University sent its recommendations to the State Government for its approval, but, the Respondent No. 1 State Government has not approved the said re-designation and pay-scales as per recommendations of the University. It is relevant to point out that similar qualification and activities do not give rights to the petitioner to claim the UGC pay-scale of Rs.8000-13500. Admittedly, the petitioner was working as an Assistant Research Officer that is non-teaching post and as per the Rules, the petitioner came to be retired at the age of 58 years as non-teaching staff. 5.1 It is submitted that the petitioner was never absorbed in his capacity of a teaching staff and has actually not performed the duty of teaching staff so as to attract the benefit of UGC scale. It is submitted that though the proposals were sent by the university under the decision of the Board of Governor, such proposals have not been accepted by assigning cogent reasons by the State Government. It is submitted that though the proposals were sent by the university under the decision of the Board of Governor, such proposals have not been accepted by assigning cogent reasons by the State Government. The stand of the ICAR is also correct stand as it is for the State Government to take decision with regards to pay-scale of the teachers of Agriculture University. 6. In rejoinder, learned advocate for the petitioner submitted that the petitioner is having teaching experience and for that purpose, draws attention of this Court to Annexure-XI and XII. 7. The Court has heard learned advocates for the parties and perused the documents placed on record. The claim of the petitioner is to treat the petitioner as teaching staff of the agriculture university and to grant him pay-scale as approved by the UGC and treat the case of the petitioner for public on duty till the age of superannuation for UGC teacher at the age of 62, whereas the petitioner has in fact retired at the age of 58 years in the year 2006. 8. From the record, the case of the petitioner is that the petitioner joined the service of State Government in the year 1975 as Fisheries Officer and thereafter, he was transferred in the pay-scale of Rs.6500-10500 vide Resolution dated 24/02/1999 of the Ports and Fisheries Department and thereafter, when the option for the University was sought, he chose the same and he was included in the University. The petitioner was transferred as per the provision of Section-52 of the Gujarat Agricultural University Act, 1969 with all activities pertaining to the education research and expansion under the Fisheries Department vide Resolution No. FDV-1198-2968-T dated 24/02/1999 of the Ports and Fisheries Department. Section-52(1) and Section-52(a) of the Gujarat Agricultural University Act read as under: (1) Notwithstanding anything contained in Section-51, such of the existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the University under Section-51, or such other staff connected therewith, as the State Government may, from time to time, having regard to the necessity therefor, direct, shall be taken over and employed b/ the University, and every person so taken, over and employed shall be subject to the provisions of this Act and the Statutes and regulations made thereunder. Provided that: (a) during the period of such employment all matters relating to the pay, leave, retirement,, allowances, pension, provident fund and other conditions of service of tie members of such staff shall be regulated by the Bombay Civil Services Rules, 1959 or such other rules as may, from time to time be made by the State Government. 8.1 Upon considering the representations made by the petitioner, under the Gujarat Agricultural University Act, 1969, his prayer for UGC pay-scale cannot be allowed on the below mentioned grounds: (1) Before joining Gujarat Agricultural University, the petitioner was serving as Mundra Fish Farm of the State Government. He was officer of the State Government. Merely because he was to be included in Gujarat Agricultural University and his qualification was as per UGC and he was performing the duty equivalent to the officers of University getting pay as per UGC, pay-scale of UGC cannot be allowed to him directly. (2) Letter dated 03/03/1999 of ICAR contains instructions of pay revision w.e.f. 01/01/1996 against the existing pay-scales, whereas, these instructions shall not be applicable to the petitioner, Research Officer directly as he is in the pay-scale of Rs.6500-13,500. (3) The Sardarnagar Dantiwada Krushi University was directed to obtain permission-approval of Indian Council of Agricultural Research vide Letter No. GKV-142004-3151-K-2 dated 19/03/2007 of the Department regarding the representation to grant pay-scale of Rs.8000-13,500 as per UGC against the pay-scale of Rs.6500-10,500. The University sought approval of the Indian Council of Agriculture Research by Letter No. SDU/Reg./A.1.1/5929/2007 dated 23/04/2007. In this context, the ICAR has not granted explicit approval to the Sardar Krushinagar Dantiwada Krushi University vide Letter No. F.37(2)-07-Per.IV dated 13/11/2007 to allow payscale of Assistant Professor to the petitioner. 9. The petitioner having qualification equivalent to the qualification of UGC approved post of teacher, cannot be sufficient for the petitioner to claim the entitlement equivalent to the UGC scale. The fact of having actually performed the duty of teaching staff in the university is the relevant factor to claim the UGC pay scale. 9. The petitioner having qualification equivalent to the qualification of UGC approved post of teacher, cannot be sufficient for the petitioner to claim the entitlement equivalent to the UGC scale. The fact of having actually performed the duty of teaching staff in the university is the relevant factor to claim the UGC pay scale. The respondent university has unequivocally and strongly denied the fact that the petitioner has till date of his retirement undertaken any teaching duties and the attempt made by the petitioner to demonstrate that he has actually taught by relying upon Annexure-XI and XII, in the opinion of the Court, is nowhere near to claim that the petitioner has discharged is duty as teaching staff. The certificate so produced reflects sporadic lectures which the petitioner may have taken in other institutes under the university, but would not definitely equate his duties as teacher in the respondent agriculture university. Therefore, the petitioner has failed to establish any record of discharging duty as a teaching staff and on the other hand, the respondents have strongly denied such fact and therefore, the Court is not inclined to accept the contention of the petitioner and to claim pay-scale equivalent to UGC approved teaching staff on the basis of having equivalent educational qualification alone. 10. The reliance placed by the petitioner on the Board of Governor meeting and its recommendation is also unfounded as it was merely a proposal which was forwarded for the purpose of re-designation and there is no scope of treating the proposal to have been accepted unless it is accepted by the State Government and therefore, reliance on such proposal will not help the petitioner in his claim. 11. The petitioner has now retired long back in the year 2006 having attaining the age of superannuation of 58 years on 30.06.2006 and it is only thereafter, that the petitioner has raised his claim in this regard. With the passage of time, the Court is not inclined to accept the case of the petitioner now only for the purpose of monetary benefit, where in fact he has not performed any such duty of teaching staff after being absorbed in the respondent university. 12. The Court sees no reason to interfere with the decision of the State Government. The petition therefore, deserves to be and the same is hereby dismissed with no order as to costs. Rule is discharged.