SCA/8212/1996 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8212 of 1996 With SPECIAL CIVIL APPLICATION No. 8278 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 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 ? ========================================= === SOUTH GUJARAT UNIVERSITY TEACHERS ASSOCIATION - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= === Appearance : SPECIAL CIVIL APPLICATION No.8212/1996 MS ZIRGA JHAVERI for Petitioner(s) : 1, MS ASMITA PATEL ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR RR MARSHALL for Respondent(s) : 2, SPECIAL CIVIL APPLICATION No.8278/1996 MR SM MAZGANKAR for Petitioner(s) : 1, MS ASMITA PATEL ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR RR MARSHALL for Respondent(s) : 2, ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE SCA/8212/1996 2/11 JUDGMENT Date : 05/05/2008 ORAL JUDGMENT Both these writ petitions involve common question to be determined by this Court and the subject matter involved is identical. Special Civil Application No.8278/1996 1. This petition under Article 226 of the Constitution of India challenges the resolution of the Government dated 8.10.1996 and subsequent action by the South Gujarat University based upon the above resolution to discontinue revised pay scales, campus allowance, CLA and examination allowance granted to the non-teaching staff of the respondent University and initiation of recovery of the excess payment of the above allowances as unjust, illegal, arbitrary, unreasonable, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 2. It is contended by Shri S.M.Mazgankar, learned advocate, appearing for the petitioner that Section 20 of the South Gujarat University Act, 1965 (herein after referred as the 'Act') provides that powers and duties of the Syndicate and Clause XXII of Sub-section (1) of Section 20 is pertaining to appointment of teachers and servants of the University, fix their emoluments, if any, and to define their duties and the condition of their service and discipline. According to Shri S.M.Mazgankar, learned advocate for the petitioner in exercise of the powers under clause XXII of Sub-section (1) of Section 20 SCA/8212/1996 3/11 JUDGMENT of the South Gujarat University Act, 1965 by resolution passed by the South Gujarat University, the allowance viz. campus allowance, CLA and examination allowances came to be granted and the petitioner used to receive the above allowances. 3. According to learned advocate for the petitioner the University had full powers under the Act, to prescribe pay scales and allowances to its employees and by an ordinance dated 24.2.1982 w.e.f. 9.12.1981 of State of Gujarat and insertion of sub-section 3(A) in Section 20 of the Act, made the following provision which reads as under: “ The exercise of the powers by the Syndicate under Clause (XXII) of sub-section (1) in so far as they relate to the laying down and regulating salary scales and allowances of teachers and servants of University, shall be subject to the approval of the State Government.” 4. Learned advocate Shri S.M.Mazgankar relied on the decisions of the Apex Court (1) in case of Bashiruddin Ashraf v. The Bihar Subai Sunni Majlis-Awaqf & Anr. reported in AIR 1965 SC 1206 and (2) in the case of Life Insurance Corporation of India v. Escorts Ltd. & Ors. reported in AIR 1986 SC 1370 and with regard to interpretation of the words “subject to” and “approval”. 4.1. According to learned advocate for the petitioner subject to the approval, does not mean prior or previous approval and, therefore, recommendations made by the South Gujarat University to the State Government for approval of the grant of SCA/8212/1996 4/11 JUDGMENT revised pay scales, campus allowance, CLA and examination allowances to the non-teaching staff cannot be said to be illegal per se and even after insertion of sub-section (3) (A) in Section 20 of the Act, the University retained the power to recommend the case in the above mentioned cases. 4.2. Therefore, initiation of recovery of the dues for all the above heads namely revised salary, campus allowance, CLA and examination allowances by the University based on the Government Resolution dated 8.10.1996 deserves to be quashed and set aside as unjust, unreasonable and even discriminatory and violative of Article 14 of the Constitution of India. 5. Even on factual aspects, learned advocate for the petitioner submitted that South Gujarat University is constituted and established under the South Gujarat University Act, 1965 (for short 'The Act') and in or about 1974 the building for the administrative offices of the University was constructed on the University campus, 8 kilometers away from the limitation of Surat Municipal Corporation, the Committee appointed for vacating, shifting of the offices etc., recommended grant of campus allowance and accordingly Resolution No.41 was passed on 26.6.1974 and the syndicate of the University approved the same on 14.8.1974. The above grant of campus allowance was considered by the second pay revision commission and it was also recommended by the commission to continue the same and later on Government had also sanctioned the campus allowance by Resolution dated 23.6.1976 along with the CLA to the non-teaching staff of South Gujarat University. SCA/8212/1996 5/11 JUDGMENT 5.1. The above allowances came to be increased from time to time and continued to be paid to the members of the petitioner association. 6. So far as examination allowance is concerned, it was granted by the resolution dated 11.11.1967 and came to be sanctioned by resolution No.15 dated 6.1.1968 which continued to be increased subsequently and by resolution dated 1.5.1978 the State of Gujarat decided that non-teaching staff not exceeding 25% working in the Universities who were actually performing the examination, may be paid extra allowances @ 10% of the basic pay w.e.f. 1.4.1978 on certain conditions. Accordingly, the South Gujarat University as per Resolution No.20 dated 17.8.1979, decided to grant examination allowances to particular staff and officers. In view of certain anomalies, the syndicate of the South Gujarat University took certain decision in the meeting held on 8.7.1981 and passed the resolution on the very same day about conditions for grant of examination allowance with minor modifications. 6.1. Later on, another Resolution dated 13.7.1989 came to be passed by the Government consolidating the orders issued by the Government in regard to examination allowance and accordingly 5% of the basic pay in the revised pay scale was granted for examination allowances. 7. So far as revision of pay scale is concerned as per the recommendations of the 4th Pay Commission, the Gujarat University and the Saurashtra University further revised their SCA/8212/1996 6/11 JUDGMENT pay scales for certain categories of posts and, therefore, South Gujarat University also resolved on 9.12.1981 vide resolution No.7 to revised pay scale of the corresponding categories of post w.e.f. 1.7.1981 and was sent for approval to the State of Gujarat. The above two Universities namely Saurashtra and Gujarat Universities implemented their decisions to revised pay scale before the ordinance dated 9.12.1981 and continued to revise later on also w.e.f. 1.1.1986 as per the recommendations of the 5th Pay Commission. Even a committee was also appointed by the State of Gujarat to consider the revised pay scale granted to the members of the petitioner association and ultimately without hearing the petitioner, the impugned resolution dated 8th October, 1996 came to be passed. 8. Therefore, according to learned advocate for the petitioner recovery of the above four heads by the University is illegal, unreasonable, arbitrary and violative of Article 14 and, therefore, deserves to be quashed and set aside. 9. Learned AGP Ms. Asmita Patel, appearing for the respondent State and University failed to justify the action impugned and however submitted that the action of the University was contrary to the Section 3(A) of the Act and without approval by the State Authority, no such resolution could have been passed. 10. Having heard learned advocate appearing for the parties, on perusal of the record and relevant provisions of the statute namely the South Gujarat University Act and particularly the provisions of Section 20 sub-section (1) clause XXII and Section SCA/8212/1996 7/11 JUDGMENT 3(A) which is already produced at the beginning of the order, empower the University to exercise the power by the syndicate under Clause XXII of sub-section (1) of Section 20 with regard to regulating salary scales and allowances of teachers and servants of the University which shall be subject to the approval of the State Government. 11. There is no dispute that sub-section 3(A) of Section 20 came to be introduced by Government Ordinance dated 24.2.1982 w.e.f. 9.12.1981 and resolutions came to be passed by the South Gujarat University with regard to revised pay scales w.e.f. 1.7.1981 and implemented by the syndicate resoltuion dated 17.8.1988 w.e.f. 1.1.1986 was within the powers conferred under Clause XXII of sub-section (1) of Section 20 of the Act. So is the case with campus allowance, CLA and other allowances granted by the syndicate of the Universities to its non-teaching staff. Even if sub-section 3(A) is perused as introduced by Ordinance dated 24.2.1982 w.e..f 9.12.1981, the exercise of powers by the syndicate under Clause XXII of sub-section 1 of section 20 is subject to the approval of the State Government. The above sub-section nowhere prescribed any previous or prior approval by the State Government and, therefore, passing resolution by the syndicate of the South Gujarat University granting pay scales, campus allowances, CLA and examinations allowances cannot be said to be per se bad or illegal. If, later on, the power exercised by the syndicate of the concerned University is held to be not in consonance with relevant rules or such powers are held to be exercised contrary to law by the State Government, the fact of non-approval by the State Government subsequent to passing the resolution, the authority concerned will be SCA/8212/1996 8/11 JUDGMENT entitled to dis-continue such benefits from the date when it is held to be illegal. At the same time any order of recovering the benefits already paid by the Universities in exercise of powers under Clause XXII of sub-section (1) of section 20 of the Act, cannot be permitted to operate since such powers exercised by the University till its approval or otherwise subsequently by the State of Gujarat cannot be said to be illegal. Besides, the grant of such benefits by the syndicate of the South Gujarat University cannot be said to have been granted at the behest of the non-teaching staff of the University by way of any mis- representation or incorrect facts to the University. It is not a case of the respondent that the University has exercised the powers without any authority of law. 11.1. Therefore, the decision relied on by Shri S.M.Mazgankar, learned advocate for the petitioner in the case of Bashiruddin Ashraf (supra) and Life Insurance Corporation of India (supra), so far as the phrase 'subject to approval' are concern, the decisions are clearly applicable. 11.2. In the case of Bashiruddin Ashraf (supra) to make temporary appointment when there is vacancy in the office of Mutwalli subject to any order by the competent authority was held by the Apex Court that such provisions never meant that either prior permission or subsequent assent before the appointment can be made. The appointment is to endure according to its tenor till an order to the contrary is passed by the competent Court. In the present case the recommendations made by the syndicate of the University were subject to approval of the State Government were to endure according to its tenor till the order to the contrary is SCA/8212/1996 9/11 JUDGMENT passed by the State Government. 11.3. The second decision of Life Insurance Corporation of India vs. Escorts Ltd. And Ors., as per section 29(1) of the Foreign Exchange Regulation Act, 1973, no person resident outside India whether individual, firm or company incorporated outside India can acquire shares of any Company carrying of trading, commercial or industrial activity in India without prior permission of Reserve Bank of India was interpreted by the Apex court and ultimately it was held that the scheme of the Act do not make previous permission imperative under Section 29(1) and object of Section 29 of the Act was to regulate and not to ban carrying on in India of the activities contemplated of Clause (a) and Clause (b) of the Section. 12. Therefore, in the present case, the legislature has thought it fit not to mention about word 'prior' or 'previous' approval of the State Government while exercising power under Clause XXII of sub-section (1) of section 20 of the Act, the decision of initiation of recovery of monetary benefits conferred upon non-teaching staff of South Gujarat University under different heads namely revised pay scales, campus allowance, CLA and examination allowance is unreasonable, arbitrary and discriminatory and violative of Article 14 of the Constitution of India and, therefore, the action of the respondent-University to initiate recovery of the above dues is quashed and set aside. 12.1. Thus the impugned Government Resolution dated 8th October, 1996 so far as, it directs University to recover difference of arrears of revised pay scales, Campus allowances, SCA/8212/1996 10/11 JUDGMENT CLA and examination allowances is concerned, it is hereby directed that the South Gujarat University shall not recover any amount of all the above four heads from 8.10.1996 and other consequential directions of the impugned resolutions are not disturbed, since it is within the power of the State Government to approve or dis-approve the decision taken by the syndicate of the South Gujarat University in exercise of powers under Clause XXII of sub-section (1) of Section 20 of the Act. Special Civil Application No.8212/1996 1. Heard Ms. Zirga Jhaveri, learned advocate appearing for the petitioner who refers to prayer 6(A) which reads as under: “6(A) the Honourable Court be pleased to issue a writ of mandamus or writ in nature of mandamus or writ of or any other appropriate writ, direction or order quashing and setting aside Resolution at Annexure A to the petition dated 8th October, 1996 to the extent to which it is against the members of the petitioner Association.” 2. Learned advocate for the petitioner submits that in support of relief claimed in this petition in the prayer clause, she relies and adopts arguments canvassed by Shri S.M.Mazgankar, learned advocate appearing in Special Civil Application NO.8278/1996. 3. For the reasons stated in Special Civil Application No.8278/1996 for allowing the prayer of the petitioners, this SCA/8212/1996 11/11 JUDGMENT petition is also identical and similar, pertaining to recovery of campus allowance, no separate reasons are assigned and this petition also succeeds on the basis of reasonings given in Special Civil Application No.8278/1996 to the extent of action of respondent-South Gujarat University of recovering campus allowance from the petitioner is held illegal and respondents are directed not to recover the campus allowance on the basis of impugned resolution dated 8.10.1996 of the State Government. 4. Rule made absolute to the extent as indicated above, with no order as to costs. [ANANT S. DAVE, J.] //smita//