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LPA/426/2000 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 426 of 2000
In
SPECIAL
CIVIL APPLICATION No. 6265 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHANUMATI
KRISHANKAT DAVE - Appellant(s)
Versus
AHMEDABAD
MUNICIPAL CORPN & 3 - Respondent(s)
=========================================================
Appearance
:
MR
DIPAK R DAVE for
Appellant(s) : 1, 1.2.1,1.2.2
MR RAJESH CHAUHAN FOR MR HS MUNSHAW
for Respondent(s) : 1 - 2.
MRS VD NANAVATI for Respondent(s) :
3,
MR MITUL K SHELAT for Respondent(s) : 3,
MR NJ SHAH, ASST
GOVT. PLEADER for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 26/09/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1. The
present appeal arises from the judgement and order dated 30.06.2000
in Special Civil Application No. 6265 of 1999 wherein the judgement
and order dated 16.08.1999 passed by the Gujarat Affiliated Colleges
Service Tribunal in Application No. 52 of 1999 was set aside by the
learned Single Judge.
2. The
appellant herein was appointed as a Professor in Pharmacology in the
year 1972 in the college run by the opponent corporation. It is the
case of the appellant that as per the State Government as well as
Gujarat University, the retirement age of the teaching staff is 62
years and hence he should be allowed to continue in the services till
he attains the age of 62. The appellant therefore approached the
Gujarat Affiliated Colleges Service Tribunal by way of Application
No. 52 of 1999. The Tribunal after hearing the parties, the Tribunal
directed the respondent corporation to continue the appellant till
the age of 62 years. Being aggrieved by the said judgement, the
respondent corporation preferred Special Civil Application No. 6265
of 1999 before this court. The learned Single Judge vide order dated
30.06.2000 allowed the same and quashed and set aside the order dated
16.08.1999 passed by the Tribunal. Hence the present appeal is
filed.
3. We
have heard the submissions advanced by learned counsel for the
parties and perused the papers on record.
4. Mr.
Dave, learned advocate for the appellant submitted that in view of
the language used in the resolution dated 27.07.1998-Annexure ‘F’
wherein clause (vi) reads that the age of superannuation of
university and college teachers would be 62 years and thereafter no
extension in service should be given and that however it will be open
to university or college to re employ a superannuated teacher
according to the existing guidelines framed by the UGC upto the age
of 65 years, the respondent
corporation ought to have considered the superannuation age of its
employees as 62 years as the subsequent resolution dated 07.09.1998-
Annexure ‘G’ had adopted the resolution dated 27.07.1998.
5. We
have read the impugned judgement and order passed by the learned
Single Judge. The learned Single Judge has in detail considered the
submissions of both the sides and has come to the conclusion that
‘Medical Science ‘ not being a professional course, no benefit
including that of the enhanced age of superannuation under the scheme
or Ordinance 172 can be conferred upon such teachers. The learned
Single Judge in relevant paragraphs has observed as under:
“It
is required to be noticed that the recommendations made
by the UGC were in respect of the revision of pay of the teachers
and also in respect of the requisite qualifications and
incentives for career advancements, etc. The recommendations made by
the UGC were accepted by the Government of India in its Ministry
of Human Resources Development [Education Department] and the
acceptance was communicated by communication dated 27th July,
1998 referred to hereinabove. The said communication
evidences that the the Government of India had decided to revise
the pay scales of the teachers in the Central Universities and in the
Colleges affiliated to the Central Universities. The revision of
pay scales of teachers was made subject to various provisions of the
scheme of revision of pay scales, as contained in the said
letter and the regulations to be framed by the U.G.C. The
Scheme of the revised pay scales was also sent to the Education
Secretaries of the States and Union Territories. The Central
Government also assured the financial assistance to the State
Governments who wish to adopt and implement the scheme of revision of
pay scales, subject to the terms and conditions contained therein.
Paragraph 8 of the said communication specifically excludes
the Agricultural Universities and Agricultural, Medical and
Veterinary Science Colleges. The said scheme was thus made
applicable to the teachers other than the teachers in the
Agricultural Universities and the Agricultural, Medical and
Veterinary Science Colleges. Paragraph 4 thereof enjoins upon the
State Government to implement the scheme as a composite scheme
without modification, except the date of implementation. It is
the said scheme which has been adopted by the State Government
under its Resolution dated 7th September,1998. The scheme
which was accepted by the Central Government and for which the
financial assistance was assured was in respect of the teachers in
Colleges other than in the Agricultural University and in
the Agricultural, Medical and Veterinary Science Colleges. In view
of paragraph 4 of the communication dated 27th July, 1998
addressed to the Education Secretaries of the State Governments,
referred to hereinabove, the Government could not have
adopted the scheme of revision of pay scales beyond the scope
circumscribed in the said communication dated 27th July, 1998.
The Government Resolution dated 7th September, 1998, therefore,
is required to be read in light of the instructions
contained in the above referred communication dated 27th July, 1998.
The scope of the Government Resolution dated 7th September, 1998,
therefore, cannot be expanded so as to include the teachers in the
Agricultural Universities and the Agricultural, Medical and
Veterinary Science Colleges who are specifically excluded
from the applicability of the scheme adopted by the Central
Government. Similarly, the Vice Chancellor had issued the
Circular dated 2nd November, 1998, pursuant to the Government
Resolution dated 7th September, 1998 and paragraph 15 of the
Ordinance 172 has been amended pursuant to the Circular dated 2nd
November, 1998 issued by the Vice Chancellor. I am, therefore,
of the view that not only the Resolution dated 7th September,
1998 but the above referred Circular dated 2nd November, 1998 and
the Ordinance 172 (15) [as amended on 4th May, 2000] are required
to be read in light of the conditions prescribed in the above
referred communication dated 27th July, 1998. In my view, the
Central Government had no intention to include the
Agricultural Universities and Agricultural, Medical and Veterinary
Science Colleges in the aforesaid scheme nor the same can be
said to have been applied by the State Government to the teachers
in Agricultural University and Agricultural, Medical and
Veterinary Science Colleges. Besides, the reliance placed on
Ordinance 172 (15) is wholly misconceived. It is required to be
noted that the professional courses are specifically excluded from
the purview of Ordinance 172(15) of the University. It cannot
be gainsaid that,`Medical Science is also a professional course’.
No benefit including that of the enhanced age of
superannuation under the said scheme or Ordinance 172 can,
therefore, be conferred upon such teachers.
Mr.
Munshaw has also submitted that the staff of the medical colleges is
under the administrative control of the Health Department of
the Government and the instructions issued by the Education
Department are not applicable to the staff of such colleges.
The
determination of the age of superannuation depends upon the
availability of the qualified persons, the necessity of
experienced persons and of providing employment to the younger
generation, technological development over the recent years, etc.
It is only the body of experts which can consider the factors
relevant for determining the age of superannuation. The Court of
Law sans such expertise cannot and should not interfere in such
matters. In the present case, undoubtedly neither the UGC nor
any other body of experts has taken decision in this regard.
Further, the Central Government also has expressly kept the medical
colleges out of the purview of the scheme of the revision of pay
scales accepted by it on 27th July, 1998. The University also
has specifically excluded the professional courses from the
applicability of its Ordinance 172 (15) as amended on 4th May,
2000. The claim of enhanced age of superannuation made by
the teachers herein is, therefore, devoid of merits and is hereby
rejected.”
6. We
are of the opinion that no illegality is committed by the learned
Single Judge in passing the above order. The service conditions of
teachers in the Medical Colleges shall not be governed by either the
Government Resolution dated 07.09.1998 or the Ordinance 172 (15); as
amended pursuant to the aforesaid Resolution dated 07.09.1998. We
are in complete agreement with the reasonings adopted and findings
arrived at by the learned Single Judge and therefore do not see any
reason for causing interference. Appeal is devoid of any merits and
is therefore dismissed accordingly.
(V.M.
SAHAI, J.)
(K.S.
JHAVERI, J.)
Divya//
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