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2024 DIGILAW 2051 (GUJ)

State Of Gujarat v. Uday Hariom Vyas

2024-11-22

A.S.SUPEHIA, GITA GOPI

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. The present appeal filed by the State under Clause 15 of the Letters Patent, 1865, is directed against the common judgment and order dated 06.10.2021 passed by the learned Single Judge in the captioned writ petition being Special Civil Application No.6191 of 2003 and allied matters, allowing the writ petition filed by the respondent-employees by quashing and setting aside the Reports of the Expert Committees of the year 2003 and 2018. The learned Single Judge has further recorded that the original-petitioners are entitled to the payscale of Lecturers teaching Computer Science with effect from 01.01.1996 and the arrears. 2. Since the learned Single Judge has passed the impugned judgment and order dated 06.10.2021 by taking up the captioned writ petition being Special Civil Application No.6191 of 2003 as a lead matter, we are accordingly examining the facts and law. 3. The issue raised in the present appeal pertains to the demand of “Computer Programmers” demanding the pay-scale of Rs.2200-4000/- with effect from 01.01.1986 by considering them as “teaching staff of the respective colleges”, which are affiliated to the respondent No.3 – Gujarat University. Thus, the issue is premised on the doctrine of “Equal Pay for Equal Work.” 5. Learned Assistant Government Pleader, at the outset, has pointed out the Expert Committee Report dated 14.08.2018 and has submitted that the Committee has taken care of all the aspects and ultimately, it was found that the respondents who are/were working as “Computer Programmers” are not entitled to the equal pay to that of “teaching staff of the respective Colleges”. It is submitted that the Committee was constituted for examining this aspect and ultimately, the Committee comprising four Members including the Vice-Chancellor of University has opined that the respondent – Computer Programmers are not entitled to the equal pay to that of such teaching staff. It is submitted that various aspects are considered by the Committee and hence, as per the judgments of the Supreme Court, on which the reliance was placed on behalf of the State before the learned Single Judge, the learned Single Judge ought to have rejected the writ petitions. It is submitted that various aspects are considered by the Committee and hence, as per the judgments of the Supreme Court, on which the reliance was placed on behalf of the State before the learned Single Judge, the learned Single Judge ought to have rejected the writ petitions. It is submitted that the learned Single Judge fell in error in quashing and setting aside the reports of the Committee and has further erred in issuing directions conferring the equal pay of Lecturers in Computer Science with effect from 01.01.1996 to the respondents. Thus, it is urged that as per the settled legal precedents, the impugned judgment and order may be set aside. 6. Per contra, learned advocate Mr.J.A. Adeshra, appearing on behalf of the respondent – employees has submitted that the learned Single Judge has considered various documentary evidence, as referred in paragraph No.7 of the impugned judgment, which would show that the respondents are in fact, imparting education and appointed as “Computer Programmers” and hence, they can be treated at par with the “teaching staff”. He has referred to the various documents. Learned advocate Mr.Adeshra, has further submitted that the appointment of all the respondents was approved by the University and hence, they cannot be denied the pay-scale, which has been extended to the members of teaching staff of the respective colleges since they are also teaching the subject of Computer Science. Thus, it is urged that the judgment and order passed by the learned Single Judge may not be set aside. 7. We have heard the learned advocates appearing for the respective parties. 8. The sole issue involved in the present appeal is that whether the respondents, who were appointed as “Computer Programmers” in the respective Colleges affiliated to Gujarat University can be extended the same pay scale to that of the “Lecturers” or not, on the basis of the principle of equal pay for equal work. 9. Before delving into the issue, it would be apposite to refer to the earlier round of litigation filed by the respondent-employees. It appears that the respondents filed the writ petition being Special Civil Application No.8021 of 1998 and other allied matters for not extending the pay-scale of Lecturers. 9. Before delving into the issue, it would be apposite to refer to the earlier round of litigation filed by the respondent-employees. It appears that the respondents filed the writ petition being Special Civil Application No.8021 of 1998 and other allied matters for not extending the pay-scale of Lecturers. The said petition was disposed of vide judgment and order dated 05.11.2001, directing the State Government to form a Committee comprising of Senior Officers of the Government to meet with the grievances of the respondent – employees and to examine the issue raised by them. Pursuant to such directions, it appears that the State Government formed a Committee and by the order dated 25.02.2003, the State Government rejected the claim of the respondents by holding that the respondents were working as Computer Programmers in the Non-Government affiliated colleges and they were not entitled to the pay scale and their demand was not found to be acceptable and since their representations seeking revision of pay with effect from 01.01.1986 and 01.01.1996 had been considered by the Pay Anomaly Committee constituted by the State Government and the said report was submitted to the Government and the decision was awaited and hence, it would not be appropriate for the Committee to make any recommendation, at that stage. 10. It appears that thereafter, the respondents preferred the captioned writ petition and this Court passed an interim order dated 21.02.2018 to constitute a fresh Committee and to examine as to whether the Computer Programmer can be considered as a part of teaching staff of nor. Pursuant to the said interim order, the State Government again constituted a Committee on 27.02.2018 and accordingly, a report was prepared by four Members including the Vice-Chancellor of the respondent – Gujarat University. By the said report, the Committee once again rejected the case of the respondents. The learned Single Judge by the impugned judgment and order has quashed and set aside the decisions taken by the Expert Committee in the year 2003 as well as 2018 and further held that the respondents are entitled to equal pay for equal work of the Lecturer. 11. Before the learned Single Judge as well as before us, it was contended by the respondents that in fact, they are doing all the work of the teaching staff and hence, they are entitled to the equal pay to that of teaching staff. 11. Before the learned Single Judge as well as before us, it was contended by the respondents that in fact, they are doing all the work of the teaching staff and hence, they are entitled to the equal pay to that of teaching staff. Such documentary evidences are incorporated by the learned Single Judge, which are 21 in numbers. The documents would show that the same pertain to certificates/communications. The documentary evidences particularly refer to the appointments of the respondents as Computer Programmers and the approval given by the University to such appointment. 12. The learned Single Judge has held that such documentary evidence would go to show that the respondents are entitled to be treated at par with the teaching staff of the respective colleges and they are discharging duties of teaching the students, which is equivalent to the Lecturers in Computer Science. It is held by the learned Single Judge that the respondents, who are working as Computer Programmers are discharging their job as a teaching job as that of a teaching job and they have also completed refreshers courses orientation courses as approved by the University Grants Commission. The learned Single Judge has disbelieved the reports of the Expert Committee and the evidences discussed by such Committee on the basis of the documentary evidence produced in the writ petitions. In fact, the learned Single Judge has held that the post of Computer Programmers and the Lecturers in Computer Science are different, since both the post-holders discharge the same duty of teaching the students of computer subject they should be treated at par and hence, by holding such, it is further recorded that the impugned decisions taken by the Committee are not tenable in law and the Committee could not have taken contrary decision to that of documentary evidence. 14. It is also noticed by us that there were various decisions relied upon by the learned Assistant Government Pleader before the learned Single Judge on the said principle. The same are as under : - (I) Punjab State Power Corporation Limited vs. Rajesh Kumar Jindal and others, 2019 (3) SCC 547 , (II) Anand Yadav and others vs. State of Uttar Pradesh and others, 2020 SCC Online SC 823, AND (III) P. U. Joshi and others vs. Accountant General, Ahmedabad and others, 2003 (2) SCC 632 15. The same are as under : - (I) Punjab State Power Corporation Limited vs. Rajesh Kumar Jindal and others, 2019 (3) SCC 547 , (II) Anand Yadav and others vs. State of Uttar Pradesh and others, 2020 SCC Online SC 823, AND (III) P. U. Joshi and others vs. Accountant General, Ahmedabad and others, 2003 (2) SCC 632 15. We may, at this stage, also refer to the findings of the Expert Committee recorded in the report, which were forwarded vide communication dated 14.08.2018 by the Secretary, Education Department to the Government Pleaders’ Office. The relevant findings of such Committee are translated and incorporated as under : - “The aforementioned submissions of the petitioners and the issues raised by them in the petition were discussed and the same is mentioned below. (1) The standards for the qualifications of the Professors of Computer Science have been laid down in the year 1984 and nothing was mentioned about Computer programmer at that time. In the letter of the Gujarat University dated 27.07.1991, addressed to the Principals of all affiliated Science/ Commerce colleges, it was mentioned about revising the standards of the educational qualifications of the Programmer of Computer Science. The Committee has noted that the level of educational qualification of the Computer Programmer is below the minimum qualification prescribed by the UGC for the Lecturers. Moreover, the posts of Computer Programmer has not been included in the setup sanctioned by the UGC. Such post of Computer Programmer can be considered as local arrangement and can not be considered in or at par with the cadre of the Lecturers. (2) Taking into account the duties and responsibilities of Computer Programmer, they have been considered among the employees of the non-educational cadre. Therefore, no question arises about considering them as Lecturers of Computer Science and granting them the pay scale of the Lecturers. (3) If a Computer Programmer conducts a lecture in the Computer Lab, then it does not mean that he/ she is a Lecturer. However, this deprives the students from receiving guidance and knowledge of Professor possessing the qualification which is not appropriate since it is the fundamental right of the students to receive education of Computer Science only from a Lecturer possessing qualification. However, this deprives the students from receiving guidance and knowledge of Professor possessing the qualification which is not appropriate since it is the fundamental right of the students to receive education of Computer Science only from a Lecturer possessing qualification. It is not in the interest of the students if a person who does not possess the qualification of Lecturers is engaged in the teaching work and it can be considered as an offence. It is the responsibility of the University to prohibit the colleges wherein the Computer Programmers are engaged in the teaching of Computer Science. In this regard, the University shall initiate probe and action shall be taken against the concerned college/ management. (4) Thus, on the basis of circumstances, if the Computer Programmer is asked to do the work of Computer Science Professor, the compensation as per Lecturer can be paid but the pay scale of Lecturers cannot be granted. (5) Mere possessing higher qualification than the prescribed qualification of the post on which appointment was made does not provide entitlement to receive higher pay scale of other post. (6) The qualification of the Professor of Computer Science was decided in the year 1984 and the standard of qualification of the Programmer of Computer Science was decided in the year 1991. Thus, the posts of Professor of Computer Science and the Programmer of Computer Science are different and the standards for their qualification are also different. It is noteworthy that the Programmer of Computer Science is considered in the non-teaching cadre while the Lecturer of Computer Science is considered in teaching cadre under the Directorate of Technical Education. The degree with First Class in Computer Engineering or Technology has been considered essential as the qualification for the Lecturers of Computer Science while the qualification for Programmer has been prescribed as below. A second class university post graduate degree in Computer Application or second class bachelor degree in Computer Application and one year experience in Computer Programming in Government institutions or Government recognized institutions OR second class post graduate diploma in Computer Application and one year experience in Computer Programming OR second class diploma in Computer Engineering or Technology and two years experience in Computer Programming. (7) The duty of a Lecturer includes teaching the relevant subjects to the students studying for the degree and doing educational planning, evaluation and development of education or "faculty upgradation" etc., whereas the duties and responsibilities of a Computer Programmer include taking practical and tutoring classes of students, giving students puzzles related to software design or assisting students in experimental programs, operating and maintaining computer systems in the laboratory and preparing software system as per requirement of the organization and giving suggestions regarding system upgradation etc. (8) Thus, a Computer Programmer has to perform the duty of assisting the Professor in teaching the computer subject and the students in the computer training. (9) The pay scale for the post of Computer Programmer is not included in the pay scales approved by the UGC. (10) Comparison of Computer Programmer with Tutor/Demonstrator etc. is misplaced as these cadres existed before Sen Commission i.e. before 1936 and were in UGC pattern. But, as per the recommendations of the Sen Committee, those cadres have been merged with other cadres. The Computer Programmer is not included in the UGC pattern till date. The petitioners have submitted that the post of Computer Programmer was included in the academic staff at the relevant time vide the letter dated 27/07/1986 of the Higher Education Commissioner's Office. But, looking at the details of this letter, it mentions the sanction of academic post, but the word 'academic' is used in the sense of general sanction. The sanction of the post mentioned in this letter also mentions the post of Lecturer. In view of the fact that as there is no such mention for the post of Computer Programmer, the petitioners' submission cannot be accepted.” 16. At this stage, we may refer to the decisions of the Supreme Court on the principle of “Equal Pay for Equal Work”. The Supreme Court in the case of State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee, Munger and Ors., (2019) 18 SCC 301 , has held that the doctrine of equal pay for equal work, has no mechanical application in every case and the same has to be left on the discretion of the Expert Body and grant of pay-scale is executive function and the Court should not interfere. 17. 17. Having regard to the aforesaid findings of the Expert Committee and the documentary evidence produced by the employees, which have been found favourable by the learned Single Judge, we shall now refer to the settled legal precedent on the doctrine of “equal pay for equal work”. The Supreme Court in the case of The Bihar Secondary Teachers Struggle Committee, Munger (supra), after survey of catena of judgments, has summarized the broad principles governing the said doctrine. The same is as under:- “68. Analysis of the decisions referred to above shows that this Court has accepted following limitations or qualifications to the applicability of the doctrine of `equal pay for equal work':- i) The doctrine of `equal pay for equal work' is not an abstract doctrine. ii) The principle of `equal pay for equal work' has no mechanical application in every case. iii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a difference. iv) The application of the principle of `equal pay for equal work' requires consideration of various dimensions of a given job. v) Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. vi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. vii) Equation of posts and salary is a complex matter which should be left to an expert body. viii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences. ix) Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment. x) In a given case, mode of selection may be considered as one of the factors which may make a difference.” 17. We shall now endeavour to discuss the case of the employees in light of the afore-noted principles. 18. x) In a given case, mode of selection may be considered as one of the factors which may make a difference.” 17. We shall now endeavour to discuss the case of the employees in light of the afore-noted principles. 18. The Supreme Court has held that the granting of payscales is a purely executive function and hence, the court should not interfere with the same, and also that the equation of posts and salary is a complex matter which should be left to an expert Body. Pursuant to the directions issued by this Court, the Expert Committee comprising of four members including the Vice Chancellor of the University has opined that the respondent-employees are not entitled to the equal pay of teaching staff. The learned Single Judge has failed to appreciate the judgements relied upon by the State on the issue. In the case of Rajesh Kumar Jindal (supra), the Supreme Court has held that ordinarily, the Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. It is also held thus:- “21 It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:- (i) The nature and duties of a post; (ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) The minimum qualifications, if any, prescribed for recruitment to the post; and (iv) The salary of the post (vide Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850 ).” 19. We may reiterate the findings of the Committee. The Committee has held that the post of Computer Programmer cannot be considered at par with the cadre of Professor and the educational qualification of Computer programmer is below the minimum qualification of Lecturer as prescribed by the UGC. The Committee has also considered the duties and responsibilities of Computer Operator, which also differs and they are considered as the employees of the non-educational cadre and, a Computer Programmer has to perform the duty of assisting the Lecturer in teaching the computer subject and the students in the computer training. The Committee has also considered the duties and responsibilities of Computer Operator, which also differs and they are considered as the employees of the non-educational cadre and, a Computer Programmer has to perform the duty of assisting the Lecturer in teaching the computer subject and the students in the computer training. It is held that if a Computer Programmer conducts a lecture in the Computer Lab, then it does not mean that he/ she is a Lecturer. Finally, the Committee has also held that the post of Computer Programmer is not included in the pay scales approved by the UGC. These are vital distinguishing features, which the expert Committee has opined in its report. The respondents have not specifically denied the findings of the Report, and the learned Single Judge has also failed to discuss the findings of the Expert Committee and the reports are quashed and set aside, without forming any opinion on these aspects. The documents, on which reliance is placed by the respondents, cannot in any manner satisfy the principles proposed by the Supreme Court. Merely, because the appointments of the respondents have been approved by the University and they are assigned work of teaching, it cannot make them eligible for the pay-scale of Lecturers. Before the learned Single Judge, it was specifically contended on behalf of the State that the educational qualifications of the Computer Programmer and Lecturer are different and they are having separate cadre. Thus, in our opinion the learned Single Judge has failed to appreciate the settled legal precedent on the principle of ‘equal pay for equal work, and has erred in allowing the writ petitions by merely placing reliance on the documents produced by the respondent-Computer programmers, and ignoring the detail findings of the Expert Committee. The learned Single Judge has also erred in setting aside the Reports of the Expert Committee without appreciating the findings and the contents of the Reports. 20. Thus, on an overall appreciation of the facts and settled law on the doctrine of ‘equal pay for equal work’, the respondents who are appointed as Computer Programmers are not entitled to the pay scale of Lecturers. Hence, the present appeal merits acceptance. The same is allowed. The impugned judgement and order passed by the learned Single Judge is quashed and set aside. As a sequel, the connected civil application stands disposed of.