1. The short facts are that respondent No.1 – original applicant before the Tribunal was engaged as Librarian by the petitioner of Special Civil Application No.2015 of 1992. Thereafter, the respondent No.1 herein preferred Application No.10/1988 before the Tribunal, praying that he should be paid pay scale of Rs.550-900 with effect from 1.4.1974 as prescribed by Saurashtra University for the post of Librarian from time to time. The Tribunal, after hearing both the sides passed the judgement dated 19.3.1991, whereby the Tribunal held that the petitioner in capacity as Librarian of the Institution Lokbharti, Sanosara, Sihor would be entitled to the pay-scale at par with the pay-scale of the employees of the Saurashtra University and, therefore, directed for the payment. Accordingly, it was also observed that the State Government shall fix the pay-scale and sanction the grant, but in the event the grant is not sanctioned, then also the payment shall be made by the Institution. It is under these circumstances, the present petitions before this Court. 2. It may be recorded that SCA No.2015 of 1992 has been preferred by the Institution, who is the employer of the original applicant before the Tribunal and SCA No.2057 of 1992 has been preferred by the Commissioner of Higher Education on behalf of the State Government.
3. We have heard Mr.Baiju Joshi, learned Counsel as well as Mr.Rahul Dave, learned AGP appearing for the respective petitioners. We have also heard Mr.Goswami for Mr.Nanavati, learned Counsel for respondent No.1 – original applicant before the Tribunal and we have heard Mr.A.R. Thaker for Mr.J.R. Nanavati, learned Counsel for Saurashtra University.
4. As such the grievance of the original applicant before the Tribunal could be considered in two- fold manner; one is in capacity as the employee of the petitioner Institution to be governed by the pay-scale as provided by the State Government by Resolution dated 29th October 1977 – Annexure-B and the revision of such pay-scale by the State Government from time to time; and another is that the pay-scale, as is available to the Librarian of any College affiliated with Saurashtra University.
5. On the first aspect for entitlement of the original applicant before the Tribunal to get revision of the pay-scale as fixed and required by the Government from time to time, there could be no dispute.
6. On behalf of the petitioners herein namely; the Institute as well as on the behalf of the Commissioner of Higher Education, it has been stated before the Court that if the order of the Tribunal is to be considered and construed to mean the entitlement of the revision of the pay- scale by the original applicant before the Tribunal as revised by the Government from time to time after the Government Resolution dated 29th October 1977, the petitioners herein have no objection for such purpose and, therefore, on the first aspect, we find that no further discussion would be required.
7. However, on the second aspect, there is considerable force in the submission of the learned Counsel for the petitioners herein. It is true that if the College or any Institution is affiliated with any University, the person may be employee of the Institution affiliated with such University, but on the aspects of pay-scale, ultimately is to be fixed and sanctioned by the State Government. If for a particular Institution, the State Government has prescribed a particular pay-scale, though such College is affiliated with any University, unless the Resolution of the State government is struck down, the benefit cannot be granted. At the same time the employees of the Institution, who are governed by a particular Resolution of the Government at par with the employees of a College affiliated with the University for the purpose of comparison of a pay-scale, a full-fledged inquiry is required to be undertaken by considering the duties and service conditions. If the finding is recorded that in all respect, the duties are the same and the posts are also the same, then in that case, the legality and validity of the Government Resolution, whereby a particular, different pay-scale has been fixed for a particular Institution would be at stake. It is only after the Resolution of the government is set aside or declared illegal, on the principles of equal pay for equal work or on the ground of Article 14 or 16 of the Constitution of India, an employee of an Institution may succeed to get the same pay-scale as are being available to the employees of the University or the College affiliated with the University.
8. In the present case, the Government Resolution was not under challenge before the Tribunal, nor the Tribunal had any jurisdiction to set aside the Government Resolution. Therefore, so long as the Government Resolution operates and is not set aside by any appropriate Forum known to law, the Tribunal could not hold that in spite of the Government Resolution providing a particular pay- scale for the petitioner herein Institution, the pay-scale at par with the Librarian of Saurashtra University was required to be paid. It can also be said that the Tribunal has exceeded in exercise of the jurisdiction vested by the Statute, since it has no power to examine the legality and validity of any action of the State Government. Under these circumstances, on second aspect, the order of the Tribunal cannot be maintained.
9. In view of the aforesaid observations and discussions, the judgement and order passed by the Tribunal for directing the payment of the pay-scale to the applicant before the Tribunal at par with the pay-scale of the Librarian of Saurashtra University is quashed and set aside, but with the further observations and direction that the applicant before the Tribunal would be entitled to the revision of pay-scale made by the Government from time to time after the Government Resolution dated 29th October, 1977 for the employees of the petitioner Institution. The difference, if any, of the pay-scale or the revision of the pay-scale shall be calculated within a period of three months from today and the payment shall be made by the petitioners to the original applicant before the Tribunal within a period of one month thereafter. The aforesaid directions shall apply for payment of all retiral benefits also.
10. The petitions are allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
(Jayant Patel, J.) (C. L. Soni, J.) vinod