K B TIPNIS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners seek a direction to treat Govt. Resolutions at Annexures B and C in so far as they are against the mode shown in the petition as illegal and ineffective. It has been contended by the petitioners that by notification dated 9th March 1970 the teachers in Government colleges were given an option either to accept the UGC pay-scales or Sarela Commission pay-scales prescribed under the G.C.S. Pay Rules 1969 The teachers who opted for Sarela pay-scales continued to get their salaries in Sarela pay-scales till April 1974 The Government issued Resolution dated 16th April 1974 at Ann. B to the petition and laid down that only UGC scales be made applicable to the teachers in the Government colleges and all other existing scales including Sarela pay scales be withdrawn with immediate effect. The pay of the teachers was to be refixed on an assumption that they had never opted for Sarela pay-scales. The difference in pay was allowed as personal pay to be merged in future increments. The grievance of the petitioners is that the Government authorities have taken into account not the actual pay drawn by the teachers on 31-12-1972 in Sarela pay-scales but the pay notionally arrived at by reverting the teachers in the UGC scales.

(2.) It was contended on behalf of the petitioners by the learned counsel Mr. Girish Patel that the Government could not have withdrawn the scales once given retrospectively and the unilateral action on the part of the Government by passing the resolution dated 16th April 1974 was illegal. He argued that once the option was given under the orders dated 9th March 1970 for retaining Sarela pay-scales it could not have been taken away. It was also contended that no hearing was given before cancelling the option. It was finally contended that the orders contained in the resolution dated 16th April 1974 were arbitrary and without any justification.

(3.) The facts on record disclose that by the Government resolution dated 9th March 1970 the Government college teachers were given the benefit of University Grants Commissions scales as well as the pay-scales prescribed in the G.C.S. Pay Rules 1969 respectively with effect from 1st April 1966 and 1st June 1967. It appears that the Gujarat Government Colleges Teachers Association represented to the Government and pressed for continuation of UGC scales which stood withdrawn with effect from 9th March 1970 as a result of introduction of pay-scales under the G.C.S. Pay Rules 1969 The Government made the resolution dated 16th April 1974 after considering the whole matter de novo. Accordingly it was decided that only UGC scales as accepted by the Government should be applicable to the teaching staff and all the existing scales including Sarela pay-scale be withdrawn with immediate effect. The expression the Sarela pay-scale be withdrawn with immediate effect clearly shows that the benefits which had already accrued in the Sarela pay-scale to those who had opted were not adversely affected and the withdrawal of the scale was with future effect. There is therefore no substance in the contention that the Sarela pay-scales were retrospectively withdrawn. In fact there is intrinsic evidence in the said resolution itself which shows that fresh option was given either to choose UGC scales of pay or retain Sarela scales of pay as personal to them in relaxation of the provisions of Rule 44 of the Bombay Civil Services Rules which envisages that when the pay-scale of a post is revised a Government servant holding the post shall be eligible to draw pay only in the revised scale provided that he shall be entitled to exercise option to retain the old scale until the date on which he had earned his next or subsequent increment in the old scale or until he vacates the post or ceases to draw pay in that pay-scale and such option when once exercised shall be final. It is clear that the employees who had opted earlier for Sarela pay-scales could have again opted for the same with the consequence that the Sarela pay-scales would be treated as personal to them. Clause 3 which relates to exercise of option clearly required the option to be exercised by 31st of May 1974 and provided that an option once exercised would be final. As provided in Clause 4(b)(ii) the teachers who opted for sarela scales were required to have their pay fixed and notional pay worked out on that basis as on 1st June 1967 It was provided that the teachers whose pay was already fixed shall have that pay protected and difference between pay fixed as per sub-clause (ii) and their present pay shall be treated as personal pay to be absorbed in future increments. Clause 5 provided that the Government to waive any recovery which might arise as a result of this resolution. The learned counsel for the petitioners on the basis of Clause 4-A relating to Manner of pay-scales contended that an incongruity was there between this sub-clause A of Clause 4 and sub-clause B of Clause 4. Sub-clause B of Clause 4 separately dealt with teachers who had opted for retaining Sarela pay-scales. It provided for getting the pay fixed and the notional pay worked out on the basis of that option as on 1-6-1967 being the date with effect from the Sarela pay-scales were made applicable under the provisions of G.C.S. Pay Rules 1969 Therefore obviously the incumbents who are covered under Clause 4-A would be the persons who had not opted for UGC pay-scales at all and who had also not opted for G.C.S. Pay Rules 1969 that is Sarela pay-scales. These would be the incumbents who had chosen to retain their old pay-scales opting neither for UGC pay-scales from 1 nor for Sarela pay-scales from 1-6-1967. Therefore there is no incongruity between Clause 4 and 4B which operated in different fields. As regards those who retained Sarela pay-scales it is clear that ample provision was made to see that they were not adversely affected and it is clear that no retrospective operation was intended while withdrawing the Sarela pay-scales with immediate effect.