{"id":28903,"date":"2011-10-03T00:00:00","date_gmt":"2011-10-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-vs-state-on-3-october-2011"},"modified":"2018-02-18T22:04:56","modified_gmt":"2018-02-18T16:34:56","slug":"whether-vs-state-on-3-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-vs-state-on-3-october-2011","title":{"rendered":"Whether vs State on 3 October, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether vs State on 3 October, 2011<\/div>\n
Author: Ks Jhaveri,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8824\/1998\t 21\/ 21\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8824 of 1998\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI\t\t\tSd\/-\n \n======================================\n \n\t  \n\t \n\t \n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n1.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n2.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n3.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n4.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n5.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\n\n \n\n======================================\n \n\nM\nN SHETH - Petitioner\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondents\n \n\n====================================== \nAppearance\n: \nMR\nRR VAKIL for Petitioner. \nMS SHRUTI PATHAK, AGP for Respondent\nNos.1 - 2. \nMRS VD NANAVATI for Respondent No.3.\n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 03\/10\/2011 \nORAL JUDGMENT<\/pre>\n
1.\t\tBy
\nway of this petition, the petitioner has prayed for
\nthe following reliefs :-\n<\/p>\n
\tbe
\n\tpleased to admit this petition;\n<\/p>\n
\tbe
\n\tpleased to issue a writ of mandamus or any other appropriate writ,
\n\torder or direction in the nature of mandamus restraining the
\n\trespondents from relieving the petitioner from his service in L. M.
\n\tCollege of Pharmacy, Ahmedabad on his superannuation on 31.10.1998
\n\tand further be pleased to direct the respondents to allow the
\n\tpetitioner to continue in service beyond 31.10.1998 and treat him as
\n\tcontinuing in service as such and allow him to retire on
\n\tsuperannuation on his attaining the age of 62 years, with all
\n\tconsequential and incidental benefits;\n<\/p>\n
\tpending
\n\tadmission, hearing and final disposal of this petition, be pleased
\n\tto restrain the respondents from relieving the petitioner from his
\n\tservice in L. M. College of Pharmacy, Ahmedabad on his
\n\tsuperannuation on 31.10.1998 and further be pleased to direct the
\n\trespondents to allow the petitioner to continue in service beyond
\n\t31.10.1998 and treat him as continuing in service as such and allow
\n\thim to retire on superannuation on his attaining the age of 62
\n\tyears, with all consequential and incidental benefits;\n<\/p>\n
2.\t\tIdentical
\nissue came to be raised in Special Civil Application No.4047 of 1999
\nand this Court vide judgment and order dated 05.12.2006 dismissed the
\nsaid petition.  The said judgment is extracted below :-\n<\/p>\n
“1.\tThis
\nwrit petition under Article 226 of the Constitution of India is
\npreferred by the petitioners, who were employees of the Government
\nEngineering Colleges of State of Gujarat. At the relevant point of
\ntime, all the petitioners were in service and particulars regarding
\nservice of the petitioners are provided as per the chart annexed at
\nAnnexure-A to the petition. The petitioner Nos.1, 3 and 6 are
\nAssistant Professor, while petitioner Nos.2 and 5 are Professors and
\npetitioner No.4 is the Principal. In this petition, the petitioners
\nhave prayed for the following reliefs :\n<\/p>\n
(a)\tto direct
\nthe respondents to give benefit of the increased age of
\nsuperannuation of 62 years to the petitioners – teachers of
\nEngineering Colleges w.e.f. 31.7.1998 as directed by the Central
\nGovernment and the All India Council for Technical Education (AICTE)
\nvide communications dated 31.7.1998, 2.9.1998 and 9.10.1998 as per
\nAnnexure-B colly and to further direct the respondents to continue
\nthe petitioners in service of their respective posts as teachers in
\nthe faculty  of Engineering till they attain the age of 62 years;\n<\/p>\n
\tOR IN THE
\nALTERNATIVE<\/p>\n
(b)\tTo direct
\nthe respondents to give benefit of the enhanced age of superannuation
\nof 62 years to the petitioners – teachers of Engineering
\nColleges w.e.f. 7.9.98 as has been given to the other employees of
\nthe universities\/colleges by the Government of Gujarat vide its
\nresolution dated 7.9.98, 30.10.98 and 29.4.99 as per Annexure-C
\ncolly, and to further direct the respondents to continue the
\npetitioners in service on their respective posts as teachers in the
\nfaculty of Engineering till they attain the age of 62 years.\n<\/p>\n
1.1\tThe main
\nchallenge in this petition is to the action of the respondent, in
\nissuing Government Resolution dated 26.5.1999 by which date of
\nsuperannuation of all teachers in the Department of Engineering is
\nfixed at the age of 62 years and effect of the superannuation age of
\n62 years is to be given from the date of issuance of the above GR
\ndated 26.5.1999. Thus, the petitioners who were to retire on
\n14.6.1999 were deprived of the above benefit accruing out of the said
\nGR dated 26.5.1999. It is to be noted that as per the G.R. Dated
\n16.6.1993 of the State Government, to obviate the difficulties
\narising due to retirement of a teacher during current academic
\nsession, if the date of the superannuation of any teacher falls
\nduring such academic session, such an employee is allowed to be
\nretired on the last date of the academic session, meaning thereby two
\ndates for actual superannuation of the teachers in colleges are
\nnamely 31st October and 14th June of a given
\nyear  and such dates  become actual date of retirement. Since in the
\npresent case date of superannuation, on attaining age of 58 years
\noccur in the midst of academic session beginning from 1.11.1998 to
\n14.6.1999, the actual date of retirement, with an extension, for all
\nthe teachers \/ petitioners herein remain 14.6.1999. Thus, according
\nto the petitioners, if the benefit of fixation of superannuation age
\nof 62 years had been given to the petitioners, on par with other
\nteachers of different faculties of the colleges \/ universities  of
\nthe State of Gujarat, as decided by the Government of Gujarat w.e.f.
\n7.9.1998, the petitioners would have been benefited and  by creating
\nartificial cut-off line dated 26.5.1999, in the case of the
\npetitioners the Government has acted discriminatorily,
\nunreasonably, arbitrarily and in violation of Articles 14 and 16 of
\nthe Constitution of India. The case of the petitioners is on stronger
\nfooting according to the petitioners, since Ministry of Human
\nResources of Government of India by communication dated 31.7.1998,
\ncopy of which was sent to AICTE, informing the decision
\nof Government of India that age of superannuation of the teachers of
\nUniversities and Colleges is to be increased from  60 to 62 years for
\nall Central Institutions governed by AICTE. Apropos to that, AICTE
\naddressed communication dated 2.9.1998, to all Secretaries of State
\nGovernments about decision taken by the Ministry
\nof Human Resources Department of Government of India, regarding
\nincreasing the age of superannuation of teachers from 60 to 62 years
\nfor information and necessary action. Since the
\npetitioners are the teachers in Engineering Colleges of the
\nState of Gujarat and governed by the decision of AICTE, an autonomous
\nstatutory body, created under All India Council for Technical
\nEducation Act,1987, they were entitled to
\nthe benefits of the above decision with immediate effect as laid down
\nin the communication of Government of India dated 31.7.1998, where
\neffect of the decision was to be given from 31.7.1998 only.\n<\/p>\n
1.2\tAccording
\nto the petitioners, later on another decision was taken by the
\nMinistry of Human Resources Development (Department of Education) of
\nGovernment of India and communication was sent on 9.10.1998,
\ninforming all the Secretaries dealing with technical education in
\ndifferent States and Union territories about revision of pay scales
\nof teachers in engineering colleges and other such Institutions as
\nper recommendations of 5th Central Pay Commission. As per
\nthe said communication, Central Government has decided to provide
\nfinancial assistance to State Government on certain terms and
\nconditions, by which expenses of revised pay scales to the extent of
\n80% was to be borne by Central while remaining 20% of the expenditure
\nto be borne by the State Government. The above financial assistance
\nwas to be provided for the period from 1.1.1996 to 31.3.2000 and
\nthereafter, entire liability of the expenses pertaining to pay scales
\nto be borne by the State Government w.e.f. 1.4.2000. The effect of
\nthe above revised pay scale was to be given by the State Government
\nfrom 1.1.1996 and from 27.7.1998, as the case may was a later date.
\nThus, discretion of fixing date qua pay scale was left to the State
\nGovernment.\n<\/p>\n
1.3\tIn view of
\nthe above communications so far as the State Government of Education
\nDepartment is concerned, GR dated 7.9.1998 was issued by which
\nrevision of pay scales of teachers, librarians
\nand other personnels in University and College was given effect from
\n1.1.1996. That another GR dated 30.10.1998 issued by the Education
\nDepartment of Government of Gujarat by which age of superannuation
\nwas fixed for teachers of University \/ Colleges completing the age of
\n58-60 years as on 7.9.1998 or subsequent to that, superannuation age
\nwas fixed at 62 years. Thus, benefits of superannuation age was given
\nto all those teachers of Government Colleges and Universities except
\nthe petitioners who were serving in the
\nEngineering Colleges run by the State of Gujarat and governed as per
\nthe Rules and Regulations framed by the AICTE, a technical body
\nformed under the statutory provisions of the Act.\n<\/p>\n
2.\tThus, the
\ngrievance of the petitioners against the Resolution issued by the
\nEducation Department of State of Gujarat dated 26.5.1999 by which
\ncut-off line of granting benefit of age of superannuation to the
\npersons like the petitioners is fixed at 62 years, but the effect of
\nenhanced age to be given from the date of the said GR i.e. 26.5.1999.
\n The State Government has conferred the benefits of higher and
\nrevised pay scale w.e.f. 1.1.1996 by the same GR dated 26.5.1999 on
\npar with other teachers of the colleges and universities, even
\nreceiving financial aids from the Government, but the petitioners are
\ndeprived of benefit of superannuation by fixing the cut-off  line
\narbitrarily i.e. 26.5.1999, though they are serving in the Government
\ncolleges.\n<\/p>\n
3.\tShri
\nK.B.Pujara, learned Advocate for the petitioners, has mainly argued
\nthat pay scale and age of superannuation of the petitioners are
\ngoverned by the Circulars or Resolutions issued by the Education
\nDepartment of the State Government and such G.R and Circulars are
\nnormally based on the recommendations made by the AICTE, a statutory
\nautonomous body constituted under All India Council for Technical
\nEducation Act,1987. The above body also takes into consideration the
\ndecision taken by the Ministry of Human Resources (Department of
\nEducation) of the Government of India and thus, the service
\nconditions of the petitioners are based on the norms as fixed by
\nAICTE and Department of Education of State of Gujarat. Thus,
\naccording to Shri Pujara, learned advocate,  issuance of letter by
\nthe Ministry of Human Resources dated 31.7.1998 and communication of
\nthe above letter addressed by AICTE to all the Secretaries of the
\nState of Gujarat on 2.9.1998 and 9.10.1998 confer benefits of
\nenhanced age of superannuation and revised pay scale to the
\npetitioners and State Government cannot deprive the petitioners by
\nfixing the cut-off date as laid down in GR dated 26.5.1999,
\nparticularly when the benefits of age of superannuation of 62 years
\nwere given by the Education Department of the State of Gujarat to
\nother teachers and employees of the
\nColleges and Universities of non-Government as well as affiliated
\ncolleges, of revised pay scale w.e.f. 1.1.1996 and\/or age of
\nsuperannuation w.e.f. 7.9.1998. According to Shri Pujara, learned
\nadvocate, the above decision of the authority is directly against the
\ndecision of the Apex Court in case of D.S.Nakara Vs. Union of India,
\nreported in AIR 1983 SC 130  and other decisions which followed the
\nratio of the above decision and, therefore, unreasonable, arbitrary
\nand discriminatory and violative of Articles 14 and 16 of the
\nConstitution of India and require to be quashed and set aside in the
\nexercise of powers under Article 226 of the Constitution of India.\n<\/p>\n
4.\tShri
\nS.P.Hasurkar, learned AGP appearing for the respondent authorities,
\nhas mainly relied on the affidavit-in-replies filed by the concerned
\nOfficers of the Education Department namely Shri R.V.Suthar, Under
\nSecretary to the Government of Gujarat and another affidavit
\nexplaining the rational behind fixing the date of benefit of
\nsuperannuation. According to him, the service conditions of the
\npetitioners are governed as direction issued by the AICTE while the
\nteachers of other colleges of Government as
\nwell as affiliated to Government is by the University Grant
\nCommission and, therefore, no equality can be claimed. It is also
\nsubmitted that it was left open for the State Government to decide
\nabout the date of implementation and scales of pay as communicated by
\na letter dated 9.8.1998 and particularly in Clause-5 of the said
\ncommunication,  the above discretion was given to the State
\nGovernment. He has also drawn  attention to a letter dated 15.3.2000
\naddressed by the AICTE by which, in Para.2.2 date of effect of
\nrevised pay scale was decided as 1.1.1996 or from such later date as
\nthe concerned respective State may decide. Therefore, according to
\nhim, the effect of the superannuation age of 62 years is the date on
\nwhich, GR dated 26.5.1999 was issued, which cannot be said to be
\narbitrary or unreasonable or discriminatory and violative of Articles
\n14 and 16 of the Constitution of India, particularly when after
\n1.4.2000, the expenses with regard to revised pay scale was to be
\nborne by the State Government and any
\nretrospective effect of the above GR granting benefit to petitioners
\nwould have entailed huge financial burden and, therefore,  the
\ndecision of the respondent authorities does not require any
\ninterference, by issuing mandamus to the respondents, as prayed by
\nthe petitioners in the prayer clause.\n<\/p>\n
5.\tI have
\nconsidered the submissions of learned Advocates appearing for the
\npetitioners as well as for the respondents. On perusal of record,
\nwhich includes relevant annexures and affidavit-in-replies,
\naffidavit-in-rejoinder and also an additional affidavit filed by the
\nrespondents, it is evidently clear that service conditions of the
\npetitioners are governed by various circulars and resolutions issued
\nby the Department of Education, State of Gujarat. It is also to be
\nnoted that for issuing such circulars and GRs, the Department of
\nEducation, State of Gujarat take into consideration various
\nrecommendations made by All India Council for Technical Education
\n(“AICTE” for short), which is an autonomous statutory
\nbody constituted under All India Council for Technical Education
\nAct,1987, based on the decision taken by the Ministry of Human
\nResources Development (Department of Education) of  Government of
\nIndia. Thus,  the fortune of the petitioners moves on the axis of
\ndecision taken at the highest level namely the Ministry of Human
\nResources (Department of Education) of Government of India. It is to
\nbe noted that after the formation of AICTE, the recommendations
\nregarding pay scale and age of superannuation are made by the AICTE,
\nwhose functions and duties are enshrined in Section 10 of the said
\nAct and even AICTE also bound by direction given by Central
\nGovernment from time to time under Section 20 of the Act. That prior
\nto AICTE, service conditions of the petitioners were governed as per
\nthe recommendations of the University Grant Commissions.\n<\/p>\n
5.1\tTherefore,
\nfor all purposes, service tenure of the petitioners was to be
\nregulated as per the instructions and recommendations made by AICTE
\nfrom time to time. In the above backdrop of factual and legal
\naspects, the Ministry of Human Resources had issued a communication
\non 31.7.1998 by which age of superannuation of teachers was increased
\nfrom 60 to 62 years and all the concerned were informed accordingly
\nto take necessary action and the above order was to come into force
\nw.e.f. 31.7.1998. The AICTE had communicated the above decision of
\nthe Ministry of Human Resources of Government of India to all
\nconcerned State Governments where the impact of the said decision was
\nto take place. It was made clear that in view of the above decision
\nof increasing age of superannuation of teachers from 60 to 62 years,
\nnecessary action was to be taken by the concerned State Government \/
\nUnion territories and other authorities.\n<\/p>\n
5.2\tTherefore,
\nthe above communication dated 31.7.1998 by Ministry of Human
\nResources, Government of India and following communications dated
\n2.9.1998 by the AICTE to all concerned Secretaries of the State \/
\nUnion territories and other authorities of that Union  to the
\nincrease  of superannuation of the teachers from 60 to 62 years,
\nwhose service conditions were governed in accordance with the AICTE
\nrecommendations and guidelines. In view of the above, the State of
\nGujarat, Department of Education was to carry out the above
\ndirections of enhanced age of superannuation as early as possible and
\nas reflected, at least from the date of order i.e. 31.7.1998, as
\nfixed by the Ministry of Human Resources, Government of India.\n<\/p>\n
5.3\tIt is to be
\nnoted that other communications addressed by the Ministry of Human
\nResources Development (Department of Education), Government of India
\non 9.10.1998 is pertaining to revision of pay scale of teachers in
\nEngineering Colleges and degree level technical Institutions about
\nrecommendations of 5th Central Pay Commission. It also
\ncontains scheme of revision of pay scale and providing financial
\nassistance to the State Government, who wish to adopt and implement
\nthe scheme of revision of pay scale to the tune of 80% of an
\nadditional expenditure involving the implementation of the scheme and
\n20% of the rest of the expenditure to be borne by the State of
\nGujarat. The said assistance covered the period from 1.1.1996 to
\n31.3.2000 and after 1.4.2000, the expenses were to be borne by the
\nState of Gujarat only. It is to be noted that Government of Gujarat
\n(Department of Education), by issuing the GR dated 7.9.1998 passed a
\nResolution by which pay scale of teachers, librarians, physical
\neducation and personnel of universities and colleges decided to
\nrevise pay scale from 1.1.1996 to the above class of employees
\nbringing on par with revised pay scale given to the teachers of
\nuniversities and colleges as per earlier recommendations of Mehrotra
\nCommission of Government of India. So far as another Resolution dated
\n30.10.1998 is concerned, it also contained revision of pay scale of
\nteachers, librarians and other employees of physical education,
\nDepartment of Government and non-Government colleges and universities
\nit decided about fixation of age of superannuation and it was
\nresolved to increase the age of superannuation of teachers of
\nuniversities \/ colleges, who are completing the age of 58\/60 years as
\non 7.9.1998 to 62 years. Not only that, but revised pay scale was
\nsubsequently given by keeping measures for maintenance of standard in
\nhigher education for all personnels in universities and colleges in
\nGovernment as well as non-Governmental colleges by issuing GR on
\n29.4.1999 and there also, age of superannuation of 62 years was made
\napplicable to Registrars, Librarians, Physical Education personnels
\nand other employees of universities, who were treated on par with the
\nteachers and whose age of superannuation was 58\/60 years. Till then,
\nthe petitioners, who were serving in the Engineering Colleges run by
\nthe State of Gujarat, were not given any benefit in spite of clear
\ncommunication dated 31.7.1998 and 2.9.1998 about fixation of date of
\nsuperannuation.\n<\/p>\n
5.4\tThe
\nbenefits of revised pay scales was conferred upon the petitioners
\nonly by issuing  GR dated 26.5.1999. Thus, pay scale of the
\npetitioners came to be revised w.e.f. 1.1.1996, making them on par
\nwith other teachers of universities \/ colleges as decided in GR dated
\n30.10.1998 issued by the Education Department of Government of
\nGujarat, but while granting the benefit of increased age of
\nsuperannuation, it was made effective from the date of issuance of
\nimpugned GR i.e. 26.5.1999, without assigning any reasons or rational
\nof fixing the above date as the date of superannuation. Annexure-III
\nannexed with the aforesaid GR dated 26.5.1999, Clause-5 fixes the
\nabove age of 62 years making it effective from the date of issuance
\nof GR.\n<\/p>\n
6.\tIt
\nis clear from the above discussions of facts that the petitioners,
\nbefore advent of AICTE, service conditions were governed by the UGC
\nand later on by the AICTE. All recommendations and guidelines issued
\nby AICTE were to be carried out by the Department of Education, State
\nof Gujarat and thus, the State Government was duty bound to implement
\nthe recommendations of Ministry of Human Resources (Department of
\nEducation) of Government of India dated 31.7.1998, as communicated by
\nAICTE on 2.9.1998. It is admitted position, as reflected from the
\naffidavit-in-reply that there appear to be delay of about 8 months,
\nonly because files pertaining to implementation of the
\nrecommendations as above, moved from one department to
\nother department. Meanwhile, the benefits of revised pay scales and
\nfixation of age of superannuation qua other employees of the
\nGovernmental as well as non-Governmental colleges and universities
\nwere already given by GR dated 30.10.1998 and 29.4.1999. Even date of
\nsuperannuation of 62 years indicated in Part-1 and Part-6 of the
\nAppendix appended to the GR dated 7.9.1998 was made applicable to all
\nemployees of the universities. There appears to be no justification
\nor rational behind not granting
\nthe benefit of age of superannuation 62 years to the petitioners,
\nwhose services are governed by the AICTE recommendations made
\npursuant to the decision taken by the Ministry of Human Resources,
\nGovernment of India. It is also to be noted that the present
\npetitioners are serving as the teachers in the colleges run by the
\nState of Gujarat and not  any financial aided private or semi
\nGovernment colleges. It is also pertinent that only difference sought
\nto be made by the learned AGP is based on recommendations of
\nUniversity Grant Commission and the AICTE from time to time.
\nAccording to him, the benefit given to the teachers of other colleges
\nmay be Governmental or non-Governmental or even employees of the
\nuniversities was as per the guidelines issued by the UGC and the
\npresent petitioners governed as per the recommendations of AICTE.
\nTherefore, it cannot be said that they formed a homogeneous  group,
\nwhich require equal treatment at the hand of the State Government.
\nAccording to him, it was left open for the State Government to decide
\nabout the date of implementation of revised pay scales and service
\nconditions as per the communication issued by the AICTE on 15.3.2002
\nas communicated by the letter dated 15.3.2000. He has submitted
\nthat the revised pay scales was to be made effective from 1.1.1996 or
\nfrom such later date as may be decided by the State Government or
\nunion territories and, therefore, no discriminatory treatment is
\nmeted out to the present petitioners. He has submitted that in view
\nof the decision reported in AIR 1992 SC 767 since there is huge
\nfinancial burden, it is open for the State Government to fix a
\nparticular date as the date of superannuation, does not appeal to
\nthis Court, since the above decision was pertaining to introduction
\nof an entirely new scheme by the employer, where it had no connection
\nwith the existing scheme and different considerations entered in the
\ndecision making process and, therefore, considering the financial
\nimpact the Apex Court upheld, the date of fixation of pensionary
\nbenefit for the employees working in the Government aided private
\nprimary school. In the present case, so far as the petitioners are
\nconcerned, they were getting benefit of equal treatment with regard
\nto revised pay scales and other service conditions from time to time
\non par with employees of all the Governmental as well as
\nnon-Governmental colleges and universities, as issued by the
\nDepartment of Education, State of Gujarat. Not only that, but in the
\ninstant case, even revision  of pay scales were also
\ngiven to the petitioners and other employees
\nw.e.f. 1.1.1996 by GR dated 26.5.1999, the only discrimination meted
\nout is of granting benefit of age of superannuation i.e. 62 years. It
\nis profitable to note that similar issue arose in the case of
\n D.S.Nakara Vs. Union of India, reported in AIR
\n1983 SC 130
\nand Court has observed as under in Para.15, 16 and 32 :\n<\/p>\n
“The
\nfundamental principle is that Art. 14 forbids class legislation but
\npermits reasonable classification for the purpose of legislation
\nwhich classification must satisfy the twin tests of classification
\nbeing founded on an intelligible differential which distinguishes
\npersons or things that are grouped together from those that are left
\nout of the group and that deferentia must have a rational nexus to
\nthe object sought to be achieved by the statute in question. The
\ndoctrine of classification was evolved to sustain a legislation or
\nState action designed to help weaker sections of the society or some
\nsuch segments of the society in need of succour. Legislative and
\nexecutive action may accordingly be sustained if it satisfies the
\ntwin tests of reasonable classification and the rational principle
\ncorrelated to the object sought to be achieved. The State, therefore,
\nwould have to affirmatively satisfy the Court that the twin tests
\nhave been satisfied. It can only be satisfied if the State
\nestablishes not only the rational principle on which classification
\nis founded but correlates it to the objects sought to be achieved.
\n Where all relevant considerations are the same, persons holding
\nidentical posts may not be treated differently in the matter of their
\npay merely because they belong to different departments. If that
\ncannot be done when they are in service, can that be done during
\ntheir retirement? Expanding this principle, it can confidently be
\nsaid that if pensioners form a class, their computation cannot be by
\ndifferent formula affording unequal treatment solely on the ground
\nthat some retired earlier and some retired later.”\n<\/p>\n
6.1\tThat even
\nthe Apex Court in the reported decision in the case of V.Kasturi
\nv. Managing Director, State Bank of India, Bombay & Anr., AIR<\/a>
\n1999 SC 81, in Para.21, has held as under :\n<\/p>\n
“21.  If
\nthe person retiring is eligible for pension at the time of his
\nretirement and if he survives till the time by subsequent amendment
\nof the relevant pension scheme, he would become eligible to get
\nenhanced pension or would become eligible to get more pension as per
\nthe new formula of computation of pension subsequently brought into
\nforce, he would be entitled to get the benefit of the amended pension
\nprovision from the date of such order as he would be a member of the
\nvery same class of pensioners when the additional benefit is being
\nconferred on all of them. In such a situation the additional benefit
\navailable to the same class of pensioners cannot be denied to him on
\nthe ground that he had retired prior to the date on which the
\naforesaid additional benefit was conferred on all the members of the
\nsame class of pensioners who had survived by the time the scheme
\ngranting additional benefit to these pensioners came into force. The
\nline of decisions tracing their roots to the ratio of Nakara’s case
\n(AIR 1983 SC 130) (supra) would cover this category of cases.”\n<\/p>\n
\tThus, the Apex
\nCourt has laid down the law to the extent that if an employee is
\nentitled to have the benefits conferred upon the other similarly
\nsituated persons, such an employee cannot be deprived the benefits on
\nthe ground of giving effect of such benefit from a particular date.
\nIn the present case, it is an admitted position that the petitioners
\nare entitled to have benefit of enhanced superannuation age and
\neffect of which is given by the Government Resolution dated 26.5.1999
\nis on the ground that some delay has taken place of about 8 months in
\nprocessing the file of the subject by various departments of the
\nState of Gujarat. Therefore, petitioners, otherwise entitled for the
\nbenefit of enhanced superannuation age on part with teachers of the
\nArts, Commerce and Science colleges run by grant-in-aid colleges and
\neven the employees of the universities of the State of Gujarat, who
\nhave been conferred the benefits of superannuation age of 62 years by
\nGR dated 7.9.1998 and 30.10.1998, the petitioners are equally
\nentitled for the above benefits and by not conferring such benefits
\nto the petitioners, the respondents have acted unreasonably and
\narbitrarily in violation of Article 14 of the Constitution of India
\nand, therefore, it requires to be set right by this Court in exercise
\nof power under Article 226 of the Constitution of India.\n<\/p>\n
6.2\tIt is also
\nto be noted that there are only six persons like the petitioners who
\nwere to get benefit of the decision of the Government, if fixation of
\nage of superannuation of 62 years was given w.e.f. 7.9.1998,  as
\ngiven to other employees by the Resolution supra.\n<\/p>\n
6.3\tTherefore,
\nin the present case, submissions of learned AGP about grant of
\ndiscretion to the State Government about fixation of particular date
\nby the communication of AICTE dated 15.3.2000 is concerned, the same
\nis about revision of pay scale like communication dated 9.10.1998 and
\nnot about the fixation of age of superannuation. It was  also made
\nclear by the AICTE in its earlier communication dated 9.10.1998,
\nwhere the decision taken by the Ministry of Human Resources,
\nGovernment of India on 31.7.1998 about enhanced age of superannuation
\nfor the teachers from 60 to 62 years was already communicated for
\nnecessary
\naction. If any delay is taken in getting sanction of various
\ndepartments of the State Government which is delayed by 8 months,
\nnothing prevented  the State of Gujarat from giving effect of the
\nsaid decision with retrospectivity or at least from the date when the
\nsame is given to similarly
\nsituated persons by GR dated 7.9.1998, 30.10.1998 and 29.4.1999.\n<\/p>\n
6.4\tIn the
\ncircumstances, it is held that effect of fixation of the age of
\nsuperannuation of the petitioners, of 26.5.1999 i.e. the date of
\nissuance of the GR is unreasonable, arbitrary, discriminatory and has
\nno nexus with the object sought to be achieved and, therefore,
\nviolative of Articles 14 and 16 of the Constitution
\nof India, which is required to be quashed and set aside in exercised
\nof powers under Article 226 of the Constitution of India and the same
\nis quashed and set aside.\n<\/p>\n
6.5\tIn view of
\nthe above discussion and findings, it is held that the decision of
\nthe respondent authorities only to the extent of giving effect of
\nfixation of the age of superannuation from 58 to 62 years vide GR
\ndated 26.5.1999 issued by Department of Health, State of Gujarat, as
\nreflected in Clause-V of Annexure-III attached to the above GR, is
\nhereby quashed and set aside and rest of the contents of the
\nnotification including enhanced age of superannuation of 62 years
\nremain as they are. It is hereby further held that petitioners are
\nentitled to have the benefits of enhanced age of superannuation from
\n58 to 62 years on par with other teachers of the colleges of the
\nGovernment and the staff of universities as per GR dated 7.9.1998 and
\n30.10.1998. However, it is made clear that since the petitioners have
\nalready been superannuated by attaining the age of 58 years, the
\nperiod from 58 years to 62 years shall have to be considered for the
\npurpose of continuing of services and other retiral benefits and
\nnotional for the payment of salary.\n<\/p>\n
6.6\tThe effect
\nof this order be given to the petitioners within 8 weeks from date of
\nreceipt of the order passed by this Court.\n<\/p>\n
7.\tRule is made
\nabsolute accordingly to the above extent, with no order as to costs.\n<\/p>\n
8.\tAt this
\nstage, Shri K.B.Pujara, the learned counsel appearing for the
\npetitioner, submits that in view of oral order dated 14.6.1999 passed
\nby the learned Single Judge and specifically observation made in
\nPara.3 about petitioners succeeding in the petition finally, the
\npetitioners shall be deemed to be in service from the date of filing
\nof the petition and thereby, all available benefits shall be payable
\nto the petitioners. Therefore, it is necessary that the Court should
\npass an order with regard to payment of salary of the petitioners for
\nthe period of date of superannuation on the basis of completion of 58
\nyears and fixation of age of superannuation at 62 years on the basis
\nof pronouncement by this Court, having set aside fixation of cut-off
\nline vide GR dated 26.5.1999.\n<\/p>\n
8.1\tThe above
\nsubmissions are opposed by learned counsel appearing for the State on
\nthe ground that since petitioners have already been superannuated and
\nhave not worked for the said period on the basis of principle of ‘no
\nwork not pay’, no order can be passed directing respondents to pay
\nsalary for such period. Besides, Assistant Government Pleader has
\nsubmitted that interim order, if any, passed in the proceedings of
\nwrit petition is always subject to the final order that may be
\npassed.\n<\/p>\n
9.\tConsidering
\nthe above submissions, I am not inclined to accept the prayer made by
\nShri Pujara, the learned counsel appearing for the petitioners on the
\nground that the petitioners are already superannuated and they cannot
\nbe paid idle salary for the period for which they have not worked at
\nall. Thus, observations of learned Single Judge in Para.3 of the
\ninterim order cannot be given effect so as to grant payment of salary
\nas requested for.”\n<\/p>\n
3.\t\tSince
\nthe issue involved in the present petition is squarely covered by the
\nabove referred decision of this Court, the present petition stands
\ndismissed.  Rule discharged.  No order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t\t\t\t[K. S. JHAVERI, J.]<\/p>\n
Savariya<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether vs State on 3 October, 2011 Author: Ks Jhaveri, Gujarat High Court Case Information System Print SCA\/8824\/1998 21\/ 21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8824 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI Sd\/- ====================================== 1. Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-28903","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether vs State on 3 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-vs-state-on-3-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether vs State on 3 October, 2011 - 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