M J PATHAKJI PROF Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution the petitioner who is a retired professor has challenged the denial of postgraduate scale i.e. P. G. Scale of Rs. 700-40-1100 to the petitioner which according to him is wrongly denied by respondent Nos. 1 to 5 herein which are authorities concerned with giving such grade to the petitioner. The concerned respondents have refused to grant the request of the petitioner on the basis that he was a retired Government servant who was re-employed by Nadiad Education Society and consequently as per clause 5 of the Government Resolution dated 6-6-1970 annexure N to the petition the petitioner could not claim P. G. Scale to any extent which would make emoluments of the petitioner in any way higher than the last pay drawn and the pension as per the Govt. rules. The petitioner's contention is that clause 5 of the circular is violative of fundamental right guaranteed under Art. 14 of the Constitution and is null and void.

(2.) In order to appreciate the grievance of the petitioner it is necessary to note a few relevant facts leading to this petition. The petitioner was admittedly an ex-Government servant who retired from the Government service of the then State of Saurashtra in 1956 having reached 55 years of age being the age of superannuation. The petitioner had worked all throughout as a professor of history and economics during his tenure as Government servant. After his superannuation he joined the service of various private colleges as professor of history. The petitioner worked as professor of history in M. Y. B. college at Surat during the year 1957-58. Thereafter he joined Talod Arts College where he worked for some time and ultimately from 1964 to 1970 he worked as a professor of history in Nadiad college run by the Nadiad Education Society. The question of granting P. G. time scale to the University teachers and teachers serving in affiliated colleges cropped up at the relevant time and he University Grant Commission recommended P. G. scales for these teachers. As per the recommendations of the University Grant Commission P. G. time scale which was from Rs. 700-1100 was to be awarded to teachers teaching post-graduate courses in various colleges run by the University as well as in other private colleges affiliated to the University. This P. G. Scale was made effective from 1-4-1966. The question arose as to whether the petitioner amongst others was entitled to be awarded this scale as he was admittedly a postgraduate teacher from 1-4-1966. The petitioners claim for being awarded the aforesaid scale was not accepted by respondent No. 4-University which was the affiliating University so far as the college where the petitioner was serving at the relevant time was concerned. By a communication dated 30-1-1970 addressed to the petitioner by the Registrar of respondent No. 4-University which is annexure 'L' to the petition it was pointed out that so far as the question of grant of P. G. scale of Rs. 700-1100 to teachers of affiliated colleges as per 4th Five-year plan was concerned the petitioner could not be awarded the said scale for the reason that he was a re-employed ex-Government servant. It appears that the aforesaid stand taken by the university proceeded on the basis of the impugned Govt. resolution at annexure N to this petition whereunder by clause 5 it was provided that so far as re-employed Government servants were concerned their salary after superannuation had to be fixed according to the last pay drawn and the pension. It will be necessary to re-produce the said clause 5 of the resolution at annexure 'B' as a fierce attack is mounted on the said clause in the present petition. It states-

(3.) Now it must be stated at this stage that the petitioner had earlier come to this court for the very same relief viz. that he should be awarded P. G. scale of Rs. 700-1100 and the action of the concerned respondents in refusing the said claim was arbitrary and illegal. He had filed civil application No. 950 of 1974. In the said petition amongst others the petitioners had contended that denial of post-graduate scale to him was violative of the provisions contained in Art. 14 of the Constitution and was arbitrary and ultra vires. The aforesaid petition was filed in this court on 21-6-1974. During the pendency of the said petition the President of India issued a proclamation of emergency on 25-6-1975 declaring that a grave emergency existed whereby the security of India was threatened by internal disturbances. On the same day the President promulgated an order under Art. 359(1) which ran as under:-