LPA/1378/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1378 of 2006 In SPECIAL CIVIL APPLICATION No. 7314 of 2005 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= DILIPSINH SHANKERSINH BIHOLA - Appellant(s) Versus VICE CHANCELLOR/NODAL OFFICER (LEGAL) & 2 - Respondent(s) ========================================================= Appearance : MR AR THACKER for Appellant(s) : 1, MR DG CHAUHAN for Respondent(s) : 1, Respondent(s) : 2 SERVED , MS TANUJA KACHCHHI, AGP for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 18/02/2008 ORAL JUDGMENT LPA/1378/2006 2/8 JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal preferred under clause 15 of the Letters Patent arises from the judgment and order dated 3rd February, 2006 passed by the learned Single Judge in above Special Civil Application No.7314/2005. By order dated 3rd March, 1989 the apellant, the writ petitioner came to be appointed as Audio Visual Operator by the respondent – Sardar Patel Krushi University, Dantiwada (hereinafter referred to as, “the University”) in the pay-scale of Rs.1200-2040. It appears that the said pay-scale of Rs.1200-2040 remained unrevised till the date of the petition. In the year 1998, by its Resolution dated 10th August, 1998, the State Government extended the benefit of recommendations made by the Fifth Central Pay Commission to the non-teaching employees of the agriculture universities with effect from 1st January, 1996. At that time the pay of the appellant was not revised. Feeling aggrieved, the appellant preferred above LPA/1378/2006 3/8 JUDGMENT Special Civil Application No.7314/2005. The appellant prayed that the pay-scale for the post of Audio- Visual Operator in the respondent-University be revised to Rs.1400-2300 with effect from 1st January, 1986 and be extended the benefit of upward pay revision in the corresponding scale of Rs.4500-7000 with effect from 1st January, 1996. The petition was contested by the University. The learned Single Judge has, by impugned order, observed that the pay-scale of the post of Audio- Visual Operator was required to be revised from 1st January, 1996 after completing the exercise of equivalence of the similar post in the setup of the Government. The learned Single Judge has also observed that a Committee was already constituted to examine the issue. The matter was set at rest by directing the State Government to consider the question as early as possible preferably within six months. Feeling aggrieved, the petitioner has preferred the present Appeal. Mr.Thacker has appeared for the appellant. He LPA/1378/2006 4/8 JUDGMENT has assailed the judgment of the learned Single Judge. He has submitted that the University had power to create post and to decide its pay-scale. In exercise of the said power, the University had, in the year 1984, created the post of Audio Visual Operator in the pay-scale of Rs.425-700. The pay- scales prevalent in the State Government have been made applicable to the non-teaching employees of the Universities from time to time. The said pay-scale of Rs.425-700 was, therefore, required to be revised to the corresponding scale in accordance with the Pay Rules made by the State Government, which were specifically made applicable to the non-teaching employees of the Universities. The said post of Audio Visual Operator, therefore, ought to have been placed in the scale of Rs.1400-2300 from 1st January, 1986 and in the scale of Rs.4500-7000 with effect from 1st January, 1996. The learned Single Judge has thus erred in not issuing direction to the University to revise the pay-scale of post of Audio Visual Operator and in leaving the matter for decision by the State Government. LPA/1378/2006 5/8 JUDGMENT The Appeal is contested by Mr.Chauhan. He has submitted that it is true that the post of Audio Visual Operator was created by the University in the year 1984. However, it is not true that the said post was placed in the scale of Rs.425-700. He has relied upon the communication dated 12th June, 1984 and the Appendix to the said communication. The said Appendix contained the recruitment rules for various cadres in the University. The post of Audio Visual Operator is listed at Item no.41. The pay-scale sanctioned was Rs.350-560. He has submitted that the said pay was revised to the corresponding scale of Rs.1200-2040 with effect from 1st January, 1986. On 3rd March, 1989 the appellant was offered pay in the scale of Rs.1200-2040. The said offer was accepted by the appellant. He received the pay in the said pay-scale without complaint for nearly 15 years. The claim of the appellant for revision of pay with effect from 1st January, 1986 and for arrears of pay from 3rd January, 1989 to 31st December, 1995 is ex-facie an afterthought. He has submitted that as to the revision of pay with effect from 1st January, 1996 the matter was pending before the State Government. Now, LPA/1378/2006 6/8 JUDGMENT under its Resolution dated 18th March, 2006, the State Government has decided the equivalence and the pay- scale for certain isolated cadres in the University. For the post of Audio Visual Operator, the State Government has, with effect from 1st January, 1996, fixed the pay-scale of Rs.3050-4590. The University has also offered to revise the pay of the appellant in the said scale of Rs.3050-4590 and offered the appellant the arrears of salary. The appellant, however, has not accepted the said offer. Be it noted that fixation of pay-scale is a matter entirely within the jurisdiction of the employer. The court of law has no jurisdiction to decide upon such matter. Besides, in the present case, the claim of the appellant does not rest on the principle of equality or to maintain parity with some other cadre or post. But the claim is for revision of the pay-scale to the corresponding scale prevalent in the State Government, on a misconceived notion that initially the post of Audio Visual Operator carried the scale of Rs.425-700. Before us, it is now demonstrated that the post of Audio Visual Operator LPA/1378/2006 7/8 JUDGMENT was created in the scale of Rs.350-560 and not in the scale of Rs.425-700 as alleged by the appellant. In above view of the matter, we are of the opinion that the claim made by the appellant for revision of pay from 1st January, 1986 and for payment of arrears of salary from 3rd March, 1989 to 31st December, 1995 is ex-facie misconceived and is liable to be rejected on the grounds of delay, laches and acquiescence. As to the claim for revision of pay from 1st January, 1996, the claim, so far is based on a misconceived notion that the post of Audio Visual Operator was created in the scale of Rs.425-700 and needs to be revised automatically in consonance with the pay-scales prevalent in the State Government deserves to be rejected. The question of revision of pay from 1st January, 1996 has been resolved by the above-mentioned Government Resolution dated 18th March, 2006. The appellant has been offered the amount of arrears of salary from 1st January, 1996. The grievance made in the writ petition stands LPA/1378/2006 8/8 JUDGMENT redressed to that extent. In our opinion, the cause of action does not survive. The Appeal is accordingly disposed of. Notice is discharged. The parties will bear their own cost. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) /moin