IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6308 of 1995 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 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 ?
========================================================= MOHANLAL THAKERSHI RUPARELIA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MR SHIRISH JOSHI for Petitioner(s) : 1, Ms. Hansa Punani, AGP for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 3, MR DG SHUKLA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 11/01/2012 CAV JUDGMENT
1. The petitioner has filed the present petition under Article 226 of the Constitution of India making the following main prayers in para 16 (A) to (C).
“16.(A) A writ of mandamus or any other appropriate writ, direction or order in the nature of a mandamus may kindly be issued directing Respondents No.1 and 2 to grant the petitioner, salary in the following scales:
Rs.1300-1700/- from 21.6.74 to 3.7.1984 Rs.1600-2000/- from 3.7.84 to 31.12.85 Rs.6300-7300 from 1.1.1985 onwards.
Further mandate may kindly be given to the Respondents No.1 and 2 to allow the petitioner to have all the consequential benefits including House Rent Allowance, Vehicle Allowance, Special Pay, etc. in accordance with the rules, taking into account the salary to be given in the aforesaid pay scales.
(B) A writ of mandamus or any other appropriate writ, direction or order may kindly be issued quashing and setting aside the orders at Annexures D and F, and giving mandate to the concerned Respondents to designate the post of the Heads of the Department in the Government Pharmacy College at Rajkot as that of the Principal since inception of the said College, and to give all the benefits to the petitioner as being given to the Principals of other Technical Colleges.
(C) A writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus may kindly be issued quashing and setting aside the order giving appointment to the third Respondent as the Director of Technical Education, and giving a mandate to the concerned Respondents to appoint the petitioner as the Director of Technical Education in place of the third respondent.”
2. It is the case of the petitioner that the petitioner was appointed at very young age in the Government service as Class-I Officer on 21.6.1976 in the Pharmacy College at Rajkot. As averred in the petition, initially, the Pharmacy College, Rajkot was Diploma Pharmacy College for a period of eight years and thereafter, approval was granted for Degree Course in the year 1984. The petitioner continued to head the institution for Diploma as well as Degree Pharmacy Course as a Principal of the College.
3. As stated in the petition, the pay scales of teachers including Heads-Principals of Pharmacy Colleges came to be revised on 15.4.1978 vide Resolution of the Government in its Health and Family Welfare Department from 1.1.1973 and as per the said Government Resolution, new pay scale of Rs.1600-80-2000 was fixed for the Principals of the Colleges conducting Degree and Diploma Course of Pharmacy and Rs.1300-1600 for the Principal/Head of Colleges conducting Diploma Course in Pharmacy. The grievance of the petitioner is that though he was entitled to the pay scale of Rs.1600-2000, as Principal of Degree and Diploma College, he was not extended the benefit of the said pay scale. It is further stated that when the Commissioner of Foods and Drugs Control Administration, Ahmedabad moved a proposal for starting B. Pharm. Degree Course, it was stated that the petitioner would continue as Head-Principal of the College and his pay scale would be Rs.1600-2000 or Rs.1500-2500. It is averred that the proposal of the Commissioner of Foods and Drugs Control Administration, Ahmedabad was approved by the State Government and the State Government issued notification dated 3.7.1984 to start B. Pharm Degree Course at Rajkot and issued orders to the petitioner as Head of the College. Accordingly, Diploma Course was upgraded to that of the Degree Course from 3.7.1984 and since then, the petitioner has been working as Head/Principal of the College.
4. The petitioner has further stated that considering the provisions of section 2(g) of the AICTE Act, the government of Gujarat has approved Engineering and Pharmacy Courses as technical education vide its Resolution dated
the Education Department of all the State Governments that there is no difference between the Engineering and other technical education like Pharmacy, Textiles, Ceramics etc.
Therefore, on the basis of the principles of equal pay for equal work, the petitioner would be entitled for the pay scale approved by the Government of India, of Rs.6300-7300 for the post of Principal of degree technical institution. As stated further, based on the above said resolution of the Government of India, the State Government has given pay scale of Rs.6300-7300 to the head/principal of Engineering Colleges but not to the Head of Degree level Pharmacy Colleges. The petitioner, therefore, in detail, made representation to the Additional Secretary, Education Department and pointed out that the petitioner would be entitled to the above said grade of pay but instead of taking any action on the representation of the petitioner, altogether a different grade has been provided by the State Government to the petitioner under its Resolution dated 29.3.1995. Under the said resolution, post of principal has been sanctioned for the period upto 29.2.1996 in the grade of Rs.3700-5700 for the first year and thereafter, grade of Rs.4500-7500, specially for the Pharmacy College at Rajkot where the petitioner has been working. This Resolution dated 29.3.95 is found at Annexure D. It is the case of the petitioner that the petitioner put- forward his objection to the above said pay scale. However, objections of the petitioner were indirectly over-ruled by stating that after the post of Principal is filled in, the post of Head of the Department would be abolished. The petitioner has further stated that the petitioner was the only person who acted as Principal of the entire College. It is averred that without any sort of hearing, and on strange reasons, claim of the petitioner was denied. The petitioner has further averred that the Pharmacy College which was initially known as Department of Pharmacy was renamed as BK Modi Government Pharmacy College by the Government vide resolution dated 8.8.84 and the petitioner worked as Principal of Diploma and Degree College since 3.7.1984. It is stated that as per the Saurashtra University Act, the word “Principal” would mean a person who works as the head of educational institution. When the degree college was started, head of the institution is always recognized as a Principal of the College and the petitioner performed all duties as principal of the College. The revised grade of principal of Pharmacy College made available to all the technical colleges by the Government of India is Rs.6300-7300 and the petitioner possessing the qualification of B. Pharm and M. Pharm, would have been entitled to be appointed even as the Commissioner of Foods and Drugs Control Administration. The petitioner has also stated that he was deprived of his legitimate right to be appointed as Director of Technical Education. The petitioner has further averred that the petitioner possesses unique and advantageous experience of 19 years of service as Head of the College; that the petitioner has done eight research papers which were accepted at the national and international level; that the petitioner is a member of several academic bodies which includes membership in the Senate of Saurashtra University, Rajkot; that the petitioner is also life member of professional organizations like India Pharmaceutical Association (IPA); that the petitioner is the senior most person working as Head/Principal of Degree Level Technical (Pharmacy) institution since 3.7.1984. The petitioner has stated that ignoring his claim for promotion to the post of Director of Technical Education, Government straightway promoted respondent no.3. The petitioner has, thus, made a grievance that since his case was not considered either for the post of Commissioner of Foods and Drugs Control Administration or for the post of Director of Technical Education; he was put to great financial loss and was deprived of other allowances which would have been available to him if he was promoted to either of the above said post. At the last, the petitioner has stated that he would be entitled to the pay scale of Rs.6300-7300 which was given to the Principal of Engineering College as per the Government Resolution.
5. Affidavit in reply was filed on behalf of respondent no.1 on 19th August, 1996 opposing the petition. The petitioner has filed rejoinder to justify his claim. The petitioner has also filed one more affidavit on 5th April, 2010. On behalf of respondent no.2, affidavit in reply came to be filed on 1st December, 2011.
6. I have heard learned advocate for the petitioner as also the learned AGP for respondent NO.1 and 2 as well as the learned Advocate for respondent NO.4. Nobody has appeared for respondent NO.3.
7. Learned Advocate Mr. Joshi for the petitioner would submit that the facts of the case would go to show that the great injustice has been caused to the petitioner in the matter of non-payment of pay scale of the Principal of Educational Institution to the petitioner as also non- consideration of the claim of the petitioner for the post of Commissioner of of Foods and Drugs Control and for the post of Director of Technical Education. Learned Advocate Mr. Joshi for the petitioner has fairly stated that since the petitioner was permitted to voluntarily retire vide order dated 17.8.2005 passed by the Under Secretary, Education Department, State of Gujarat, the prayer made by the petitioner in paragraph 16(C) would not survive. He submitted that this petition is, now, restricted to the prayer for grant of pay scale to the petitioner by treating the petitioner as Principal of the College since the inception and for grant of all other consequential benefits. Learned Advocate Mr. Joshi while taking the Court through resolution dated 15.4.1978 from the Health and Family Welfare Department, Government of Gujarat, argued that the Principals of the Non Government Pharmacy Colleges i.e. LN College of Pharmacy and MN College of Pharmacy were granted the pay scale of Rs.1600-2000 and the petitioner being the Principal of the Degree Pharmacy College, he would be equally entitled to such pay scale. Learned Advocate Mr. Joshi would further submit that in 1986, the Commissioner of Food and Drugs Control Administration had made recommendation to the State Government to change the designation of the petitioner from Head of the Institution to the Principal of the Institution and to grant him the pay scale of Rs.1600-2000 given to the Principals of the other Pharmacy College at Ahmedabad. Learned Advocate Mr.Joshi would further submit that in the year 1990, again, the Commissioner of Food and Drugs Control Administration made recommendation for grant of the pay scale of Rs.1600-2000 with effect from 3.7.1984 to 31.12.1985 and the pay scale of Rs.4100-5300 from 1.1.1986 as the petitioner was performing his duties as Principal of the Degree Pharmacy College. Again, learned Advocate Mr. Joshi has taken me through one more communication dated 10.9.2004 addressed by the same authority to the State Government making the same recommendation for the petitioner. Learned Advocate Mr. Joshi has, therefore, submitted that unfortunately the respondent authorities have all throughout considered the petitioner simply as the head of Diploma Course and never considered him to be the principal of the entire college. Learned Advocate Mr. Joshi would further submit that the Government all throughout treated the petitioner simply as head of the institution and did not conferr the benefit of the pay scale available to the principal of the degree course in pharmacy. Learned Advocate Mr. Joshi also argued that the order of education department dated 29.3.1995 was not for the post of Principal of only Diploma Course but it was for the entire institution running diploma and degree course,both. However, treating the petitioner simply as head of the institution, the petitioner was deprived of his legitimate right to get the pay scale of the principal of Pharmacy College running Degree/Diploma Course. He submitted that if the Principals serving in Non Government Pharmacy Colleges like LN Pharmacy College at Ahmedabad and MN Pharmacy College at Khambhat were also given the pay scale of Rs.1600-2000 on the basis of the Government of Gujarat Resolution dated 15.4.1978, then, there was no reason to deny the pay scale of Principal of Degree Course in Pharmacy to the petitioner especially when there is nothing on record to suggest that the post of Principal in Pharmacy College at Rajkot was only for the Diploma Course. Learned Advocate Mr. Joshi has also taken me through resolution of the State of Gujarat dated 26.5.1999 to point out that the State of Gujarat considered to follow the Central Government and All India Council for Technical Education decision for the revision of the pay scales of teaching and non teaching staff in degree courses in engineering, architecture, town planning, pharmacy, applied arts and crafts with effect from 1.1.1996 and the State Government implemented scale of pay of various teaching posts in technical education sectors inclusive of engineering, architecture at degree level and as per the said decision, the pay scale of the Principal is revised and fixed at Rs.6300-7300 with effect from 1.1.1996. He therefore submitted that as per the said resolution also, it was incumbent upon the State Government to give benefit of the said pay scale to the petitioner by treating him as Principal of Degree College in Pharmacy Course.
8. Learned Advocate Mr. Joshi lastly urged that since the petitioner is justified in putting forward his claim for the pay scale of the principal of degree course in pharmacy college right from the year 1984, this court may allow the petition and direct the respondents to grant the pay scale of the post of principal in degree course in pharmacy college to the petitioner with effect from 1984 and also direct the respondents to grant all other consequential benefits available to the petitioner.
9. Learned A.G.P. Ms. Hansa Punani for the respondents has strongly opposed the claim of the petitioner by submitting that the petitioner was appointed in the year 1976 purely on temporary basis to officiate as Head of the Pharmacy College and thereafter, he was continued as Head of the Pharmacy College and was never appointed as Principal of the College. She, therefore, submitted that the petitioner cannot claim the pay scale of the post of Principal. Ms. Hansa Punani, learned AGP would further submit that simply because the petitioner has worked as head of the institution, that itself would not make the petitioner entitled for the pay scale of principal for Degree Course in Pharmacy. Learned AGP Ms. Punani would further submit that the Government Resolution dated 15.4.1978 as also the GR dated 6.5.1999 would have no application to the case of the petitioner. Learned AGP Ms. Punani would also submit that the recommendation made by the Commissioner of Food and Drugs
beginning that the petitioner simply worked as head of the institution. Learned AGP Ms. Punani would also submit that the petitioner is not justified in comparing his case with the principal of Pharmacy Colleges at Ahmedabad and Khambhat and also the principals of other Technical Institutions. Learned AGP Ms. Punani would further submit that since the Government has sanctioned the post of Principal for BK Modi Pharmacy College at Rajkot only to catering the requirement of diploma course till 29.2.1996 the petitioner cannot be said to have been appointed as principal of Degree College. Learned AGP Ms. Punani would also submit that the petitioner was appointed as head of the department and not as the principal of the institution, therefore, claim of the petitioner for the pay scale of principal of the institution is not sustainable. Learned AGP Ms. Punani has also submitted that from the order dated 12.3.2007, it clearly appears that the post of principal was sanctioned for diploma course in the pay scale of Rs.3700-5700 and the said post has stood cancelled as it remained vacant for three years. From the said order, she pointed out that if the post of principal was for the entire college i.e. diploma and degree, then, there was no question of upgradation of the post of principal from diploma to degree course. She therefore submitted that the case of the petitioner is not required to be accepted and therefore she urged to dismiss this petition.
10. I have heard the learned advocates for the parties at length. I have perused the documents produced on the record of the petition. It appears that the petitioner was initially appointed as head of diploma pharmacy college in the year 1976 in the pay scale of Rs.1100-1600. It further appears that in the year 1984, the Government started degree course in pharmacy and the name of the college was changed from Government Pharmacy College to BK Modi Government Pharmacy College, Rajkot. It further appears that the petitioner had continued to work as Head of BK Modi Pharmacy College from 1984 onward even though degree course was started in 1984.
The petitioner has not produced copy of his appointment order. In fact, copy of order of appointment of the petitioner has been produced by the respondent no.2 with affidavit in reply dated 1st December, 2011. Said copy of the order of appointment is found at page 170. It is dated 18th May, 1976. It is found from the said order that the petitioner was temporarily appointed to officiate as Head of Department in the Department of Pharmacy at the Government Polytechnic, Rajkot for a period not exceeding one year from the date of taking over or till a candidate selected by the Gujarat Public Service Commission is appointed, whichever was earlier. It is the claim of the petitioner that after his appointment, all throughout he worked as Head of Institution and continued to work as Head of Educational Institution after the Pharmacy College at Rajkot was converted into Degree College in the year 1984. The petitioner has, therefore, claimed that for all the purposes, he should be treated as Principal of said Pharmacy College which has been imparting education in degree and diploma courses both. Such claim of the petitioner cannot be accepted in view of the material produced on record by and on behalf of the respondents.
11. As stated above, the petitioner was temporarily appointed in the year 1976 and his appointment was not regular appointment but it was like a stopgap arrangement till regularly selected candidate was available from the Gujarat Public Service Commission. Appointment of the petitioner was continued with the same status vide order dated 9th February, 1994 which is found at page 172. It clearly states that the petitioner was continued for a long period as Head of the Department under Rule 16(2) of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967. The petitioner has accepted this order and hence continued as Head of the Department. Not only this but the petitioner also invited certificate dated 26th August, 1994 from the Under Secretary to the Government of Gujarat, Education Department which is found at page 173 which clearly records that the petitioner was holding the post of Head of BK Modi Government Pharmacy College under the Director of Technical Education, Gandhinagar. In the first affidavit in reply filed by respondent no.2, clear stand has been taken by respondent No.2 that the petitioner was simply appointed as Head of the Department in the year 1976 to cater the requirement of diploma course in pharmacy and was never appointed as Principal of the Institution. In the last affidavit dated 1st December, 2011 also which is found at page 160, while placing various materials on record, respondent No.2 has made its stand further clear to point out that the petitioner was never appointed on the post of principal. It is stated that the petitioner was continued as Head of the Institution and he was never appointed as Principal of the Institution as per the Recruitment Rules. In fact, the above said stand is fortified by the contents of the recommendation of the Commissioner of Foods and Drugs Control Administration, Ahmedabad wherein also, recommendation is made to change the designation of the Head of Department to the Principal of the College, meaning thereby, there is no material on record to show that the petitioner was ever appointed on the post of principal of Pharmacy College at Rajkot. In fact, the order passed by the Education Department, State of Gujarat dated 12.2.2007 which is found at page 178 also reveals that the post of Principal was created for Diploma Course and it stood automatically cancelled as it remained vacant for more than three years and, therefore, it was under consideration to upgrade the post of Principal of Diploma Course to the Principal of Degree Course and accordingly sanction was given to up-grade the post to Principal of Degree Course in Pharmacy in the pay scale of Rs.18000-22400.
12. From all the above said material produced on record, it clearly appears that the petitioner was never appointed as Principal of College. In fact, it also appears that the appointment of the petitioner as Head of the institution was just continued right from 1976 and was never regularized. The order at page 172 dated 9th February, 1994 passed by the Under Secretary, Education Department, State of Gujarat was accepted by the petitioner where-under the petitioner was just continued for long time as Head of the Department, meaning thereby, the petitioner was never appointed as Principal of the College but was just continued as Head of the Department. Under the circumstances, the claim of the petitioner that the petitioner had worked as Principal and, therefore, he is entitled for the pay scale for the post of Principal, cannot be accepted.
13. In fact, when the initial appointment of the petitioner was on temporary basis for a short period as Head of the Department of Pharmacy, and when the petitioner was not regularly appointed thereafter to the post of Principal of Pharmacy College and when it is clearly found from the record that in the year 1994, the petitioner was ordered to be continued simply as Head of the Institution, the petitioner cannot be given the benefit of the pay scale of the post of Principal because an employee who has not been regularly appointed on a particular post is not entitled to claim the pay scale of such post. The petitioner, as stated above, was never appointed as per the Recruitment Rules on the post of Principal or his services were never regularized by giving designation to his post as the post of Principal, and therefore, the petitioner cannot be given the benefit of the pay scale of Principal as claimed by him. In fact, it is the respondents, especially respondent no.2 who has produced the copy of appointment order of the petitioner to demonstrate that the petitioner was appointed purely on temporary basis as Head of the Pharmacy Department and then was continued in the year 1994 as Head of the Institution. The petitioner has in fact retired with this status of Head of the Institution in the year 2005. This stand of the respondents through their affidavit in reply and on the basis of the documents produced with affidavit in reply could not be disputed by the petitioner. Therefore, the claim of the petitioner that since the petitioner has worked all throughout as head of the educational institution, he is entitled for the pay scale for the post of principal, cannot stand scrutiny of law.
14. Hon'ble Supreme Court has, in the case of Indian Drugs and Pharmaceuticals Ltd. Versus Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408, held that the creation of posts, appointment to posts, regularization, fixing of pay scales, continuation in service,promotions etc. are the functions to be decided by the authorities competent. The Court cannot create a post where none exists, nor issue directions to absorb or regularize temporary employees, nor continue them in service,nor pay them salaries of regular employees, as these are purely executive or legislative functions. As per the settled principles of law, sentiments or sympathy cannot take place of legal requirement. If an employee has right to claim any benefit, employee has to establish his legal right. In present case, the petitioner has failed to establish that he was legally appointed on the post of Principal. If the petitioner was not regularly appointed and he was simply continued for long period as head of institution/department, on that basis alone, the petitioner cannot claim as a matter of right the pay scale for the post of principal. The petitioner has miserably failed to establish that he was regularly appointed on the post of principal.
15. Under the above stated facts and circumstances of the case, I find that the claim of the petitioner for the pay scale for the post of Principal of Degree Pharmacy College at Rajkot is devoid of merits and is, therefore, not required to be accepted. Petition is, therefore, required to be dismissed.
16. For the reasons recorded herein above, this petition is dismissed. Rule is discharged. There is no order as to costs.
(C.L. Soni,J.) an vyas