IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7753 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO 1 & 2 - Yes, 3 to 5- No -------------------------------------------------------------- ABDULSULTAN A MANJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR GIRISH PATEL, Sr. Advocate with MR AKIL KURESHI for Petitioners Ms MANISHA LAVKUMAR, AGP for Respondent No. 1 MR SN SHELAT for Respondent Nos. 2 and 3 RULE SERVED for Respondent No. 4 MR JR NANAVATI for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 4/11/1999 CAV JUDGEMENT Through this petition under Article 226 of the Constitution, retired principals of law colleges in the State of Gujarat in the evening of their life, have been knocking the doors of this Court for the last eight years for claiming the benefits of the pension scheme. 2. The petition was filed by seven retired principals of Law Colleges. One of them (petitioner No. 1) has already expired during pendency of the petition, and his heirs have not come forward for being brought on record since, the Court is informed, they have migrated to another country. The petition is, therefore, pursued by the remaining six petitioners whose service particulars are as under :- --------------------------------------------------------- Sr. Name of the petitioner Date of Date of No. appointment retirement --------------------------------------------------------- 2. Chhotalal C. Trivedi 03.08.1959 31.12.1982 3. Narendra Somath Pandya 15.06.1961 03.07.1985 4. Bhanuprasad M. Gandhi 14.12.1963 31.10.1987 5. Narharilal C. Jani 13.11.1961 31.12.1988 6. Prafulbhai R. Desai June, 1966 01.01.1991 7. Prakashchandra S. 10.06.1968 31.10.1989 Trivedi ------------------------------------------------------- All the petitioners were working as members of the full time teaching staff of the non-government Law Colleges affiliated to Gujarat University, South Gujarat University, North Gujarat University or the Saurashtra University. All the petitioners retired as principals of the respective Law Colleges on the dates above mentioned. The petitioners served as full time professors and threafter as principals of the respective Law Colleges during the aforesaid period. 3. The petitioners have come out with the following case in the petition :- 3.1 In the year 1967, the State Government decided to accept the University Grants Commission (`UGC' for short) recommendations for pay-scales and other conditions for the University teachers as well as for the teachers of the affiliated colleges including private affiliated Law Colleges. The scales were made effective from 1.4.1966. During the Fifth Five Year Plan, UGC made fresh recommendations and these recommendations were also accepted by the Government of India and later on by the State Government. The recommendations were implemented by State Government Resolution dated 23.11.1976 with effect from 1.1.1973 from which date the pay-scales were revised. All the affiliated non-government Law Colleges were covered by the said resolution. The Government of India decided that the State Governments which adopt the revised pay scales in the Universities and affiliated colleges will be assisted by the Government of India for the period from 1.1.1973 to 31.3.1979 to the extent of 80% of the additional expenditure involved in giving effect to the revised pay subject to the following conditions :- (i) The State Government will bear the entire balance of expenditure and will not pass on the liability for any portion of it to the University or the Managements of private colleges; and (ii) The State Government will take over the entire responsibilities for maintaining the revised scales with effect from 1st April, 1979. Thereafter by Government Resolution dated 14.9.1988 read with Government Resolution dated 19.3.1991 the pay-scales recommended by the Mehrotra Commission were made applicable to teachers in law colleges alongwith teachers in Arts, Commerce, Science and Education colleges with effect from 1.1.1986. 3.2 In the meantime by Government Resolution dated 15.10.1984 (Annexure "B"), the State Government granted pension to full time teaching staff of the Universities and of affiliated and aided non-government Arts, Science, Commerce and Educational Colleges, but did not include Law Colleges in the said scheme. The petitioners were agitating their grievance against full time law teachers being left out of the pension scheme. The representations were made through their Association also. The Gujarat State Retired Professors Association challenged the aforesaid Resolution dated 15.10.1984, in so far as it was made applicable to teachers who retired on or after 1.4.1982. Special Civil Application No. 4449/88 filed by the Association was allowed by this Court and consequently the State Government issued Resolution dated 25.4.1991 (Annexure "D") extending the benefit of the pension scheme also to those teachers who had retired between 1.1.1973 and 1.4.1982. 3.3 However, the Government did not remove the discrimination in so far as law teachers were concerned, and hence the present petition came to be filed for the following reliefs :- (i) for a declaration that the Government Resolutions dated 15.10.1984 (Annexure "B") and dated 25.4.1991 (Annexure "D") in far as the same do not include the full time teaching staff of the affiliated non-government law colleges in the State of Gujarat for the purpose of pensionary benefits, are discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution. (ii) for a direction to the State Government to extend the benefits of Government Resolutions dated 15.10.1984 (Annexure "B") and dated 25.4.1991 (Annexure "D") to the full time teaching staff of the affiliated non-government law colleges in the State of Gujarat including the petitioners. 4. The petition came to be resisted by the affidavit in reply dated 16.7.1996 filed by Mrs. R.P. Joshi, Under Secretary to the Government of Gujarat in the Education Department. While acknowledging that the recommendations of the UGC were accepted by the State Government for extending the pay-scale of Rs.700-1600 to all the teachers including law college teachers with effect from 1.1.1973 and corresponding pay-scale of Rs.2200-4000 to all law college teachers with effect from 1.1.1986 pursuant to the recommendations of the Mehrota Commission, it is stated that non-government law colleges were not grantable till 1988-89. The affidavit in reply gives the following explanation for not giving grant to law colleges for payment of salary/pension to the full time teachers of such colleges :- "The question with regard to extending the benefit of grant to the non Government law colleges, was often taken up for consideration. The committee under the Chairmanship of Mr Samuel Paul had recommended that the law colleges should be continued to be out side the Grant-in-Aid system as at present and therefore law colleges were not extended grant in aid till 1988-89. In para 5.30 of the report of the Committee on College Finances 1977, it is reported that the Management Association represented to us that the teaching faculty in law colleges consists mainly of part time teachers or guest lecturers who are persons of eminence in the field of law and who deliver lectures in the law colleges, more for prestige or honour then for remuneration. It was further stated that most of the law colleges are having a surplus and are not in need of grant in aid. As the law colleges have not voiced any financial problem before us, we do not find purpose to make any change in the `Status-Quo'. The Law colleges will continue to be outside the grant in aid list at present. It is also to state that the law colleges are professional colleges, that all Law Colleges are profit making institutions and therefore resolution dated 27.7.1977 came to be passed that no grant shall be given to law colleges. Thereafter, vide Government Resolution dated 16.6.1989 it was decided that benefit of Grant is to be extended to the non Govermental law colleges wherein an option was given to the colleges that whether they want to accept the grant or not. However the said orders have been cancelled and the Government by its resolution dated 16.6.1989 has decided to include the private law colleges in maintenance grant in aid is true but the same has been revised vide Government Resolution dated 12.7.1990, under which, it is provided to give financial assistance at the rate of Rs.100/- per student, per term as a relief to non Government Law Colleges to meet with salary expenditure limited to deficit." CONTENTIONS ON BEHALF OF PETITIONERS 5.0 At the hearing of this petition, Mr Girish Patel, learned counsel for the petitioners raised the following contentions :- 5.1 Full time teachers of affiliated non-government law colleges have been meted out all-round discrimination in the following manner :- (a) There are some Universities like M.S. University of Baroda, which have their own law colleges for imparting legal instructions at the undergraduate level. The teachers in such law colleges have all along been getting their salaries and pension from the Government. The petitioners were discharging the same duties as were being discharged by full time teachers at such law colleges. (b) There are Government law colleges like the one at Rajkot where also undergraduate instructions in law are imparted and whose teachers have all along been getting their salaries and pension from the Government. The petitioners were also discharging the same duties as were being discharged by the full time teachers at such Government law colleges. (c) Full time teachers of Arts, Science, Commerce and Education colleges affiliated to respondent Nos. 2 to 5 Universities were granted the benefit of pension scheme by the Government Resolution dated 15.10.1984 (Annexure "B") which was initially given with effect from 1.4.1982 and thereafter the date was taken back to 1.1.1973 (Annexure "D"). All the petitioners (i.e. petitioner Nos. 2 to 7) and other full time teachers in non-government affiliated law colleges having retired after 1.4.1982 were entitled to get the benefit of the pension scheme. The discriminatory treatment meted out to the petitioners and such other full time teachers of private affiliated law colleges was violative of the petitioners' fundamental rights under Articles 14 and 16 of the Constitution. 5.2 The Hon'ble Supreme Court has also held in State of Maharashtra vs. Manubhai P. Vashi, AIR 1996 SC 1, that full time teaching staff of affiliated non-government colleges cannot be meted out discriminatory treatment as compared to the full time teachers of private affiliated Arts, Science and Commerce colleges and that there is no justification for that discrimination. Such reasoning is also available to the petitioners for claiming the benefit of the pension scheme as was given to the full time teachers of affiliated private Arts, Science and Commerce colleges and also Education colleges in the State of Gujarat with effect from 1.4.1982 (which date was thereafter taken back to 1.1.1973). A Division Bench of this Court has also passed an order dated 16.1.1997 in Special Civil Application No. 10141 of 1996 directing the State Government to implement the directions given by the Apex Court in the aforesaid case. 5.3 Even if law colleges are treated as professional colleges, the full time teachers of other professional colleges like Medical and Engineering colleges are getting the benefit of the pension scheme since long and, therefore, also the petitioners are entitled to get the reliefs prayed for. 5.4 Under the various statutes establishing the Universities which are respondent Nos. 2 to 5 herein, various statutory rules and regulations are framed. Ordinance No. 172 of Saurashtra University and similar ordinances of other Universities contain service conditions. Clause 17 thereof provides for pension to all full time teachers of all affiliated colleges except Government colleges. The terms of the said ordinance are binding on the law colleges, Universities as well as the State Government. 5.5 Non-payment of pensionary benefits to teachers of private affiliated law colleges and generally the negative step motherly stand of the Government for private law colleges is contrary to the letter and spirit of the various constitutional provisions including Articles 39A and 21 as enunciated by the Apex Court in Maharashtra vs. Manubhai P. Vashi, AIR 1996 SC 1. 5.6 Conferring the benefits of the pension scheme is not a matter of bounty or a matter of charity left to the arbitrary decision of the respondents. Pension is a right of every person who had put in requisite length of service for discharging duties of imparting education which is otherwise the function of the State. The right to pension inheres in Article 21 of the Constitution. In support of the said contention, reliance is placed on the decisions of the Apex Court in AIR 1965 Sc 839, AIR 1993 SC 802, AIR 1995 SC 922 and 1995 (6) SCC 227. SUBMISSIONS ON BEHALF OF STATE GOVERNMENT 6.0 On the other hand, Ms Manisha Lavkumar, learned AGP appearing for the State of Gujarat has opposed the petition and made the following submissions :- 6.1 Law colleges were not aided institutions till 1989 by which time almost all the petitioners had retired. Hence, merely adding the words "Law colleges" in the Government Resolution dated 15.10.1984 is not going to benefit any of the petitioners. Therefore, this Court may not undertake the futile exercise of examining the question of discrimination against teachers of private affiliated law colleges. 6.2 The petition deserves to be dismissed on the ground of delay, laches and acquiescence. The Resolution dated 15.10.1984 is sought to be challenged after seven years. 6.3 The question whether private law colleges should have been included in the Government Resolution dated 15.10.1984 or whether law colleges should be given any grant or not are all matters of policy which cannot be the subject matter of judicial review under Article 226 of the Constitution. 6.4 What the petitioners are claiming, for all practical purposes, is retrospective effect to the Government Resolution dated 5.9.1997 which was issued by the Government for implementing the interim directions given by this Court in Special Civil Application No. 10141/96 filed by the Gujarat State Bar Council. It was by the said decision that for the first time the State Government decided to extend the grant-in-aid scheme to recognized private affiliated law colleges. As per the principles enunciated by the Hon'ble Supreme Court in V. Kasturi vs. Managing Director, SBI, AIR 1999 SC 81, the persons like the petitioners, who were not pensioners in the year 1996-97 with effect from which the aforesaid resolution dated 5.9.1997 came to be implemented, cannot claim the benefit of the pension scheme now available to the full time teachers in such law colleges who have retired in the academic year 1996-97 or thereafter. 6.5 Allowing the petition would open a pandora's box in as much as a large number of other retired teachers of non-aided private affiliated law colleges would come forward for claiming the similar benefits, and even non-teaching staff of such colleges may come forward for claiming such benefits and if the Government Resolution dated 15.10.1984 is held to be applicable to all such colleges, the said resolution, which was given effect from 1.1.1973, would create absolutely new and uncontemplated liabilities and would cast a heavy burden on the public exchequer. 7. The learned counsel for the Universities submitted that the Universities may not be saddled with any liability, and that this is a policy matter where the submissions made on behalf of the State Government may be duly considered. 8. This Court has given anxious thoughtful consideration to the rival submissions made by the learned counsel for the parties and finds that though the submissions made by the learned AGP on behalf of the Government are quite pursuasive, the balance tilts in favour of the petitioners for the reasons stated hereinafter. PRELIMINARY OBJECTION 9.0 Whether the petition deserves to be dismissed on the ground of delay. 9.1 As regards the preliminary objection raised by the learned AGP about delay in filing the petition, it is pointed out on behalf of the petitioners that the petitioners through their Association called "the Gujarat State Law Teachers Association" were agitating the issue before the State Government through a number of representations submitted orally as well as in writing to the State Government and the petitioners were assured that due consideration will be given to their representations. Copies of such representations made on 14.9.1985 (Pg. 41), 29.13.1989 (Pg. 47) and 14.8.1991 (Pg. 48) are on the record of the petition. However, the State Government did not relent and finally refused to accede the benefits to the petitioners and other law teachers by their reply dated 8.8.1991 (Annexure "E" Pg. 52) rejecting the option form exercised by petitioner No. 1 under the Government Resolution dated 25.4.1991. 9.2 Now it cannot be gainsaid that though there is some delay in filing the petition, the petitioners and their Association were agitating the issue time and again. It was when the Government did not remove the discrimination even while issuing the Resolution dated 25.4.1991 extending the benefit to a larger class of teachers who retired between 1.1.1973 and 31.3.1982 but did not accept the representations made by the full time law teachers that the present petition came to be filed in October, 1991. In view of the fact that the discrimination meted out to the teachers in private affiliated law colleges has been found to be unjustified by the Apex Court as well as by this Court and, therefore, the petitioners have a good case on merits, this Court would not be inclined to dismiss the petition on the ground of delay alone, more particularly when that aspect can be taken care of while moulding the reliefs by not awarding any interest on the arrears of pension till the date of filing the petition. 9.3 In this connection, this Court would refer to the following observations made by Their Lordships of the Supreme Court in case of R.S. Deodhar vs. State of Maharashtra, AIR 1974 SC 259 :- "The rule which says that a Court may not inquire into belated or stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like." In the instant case, granting the reliefs to the petitioners would not take away the rights which have accrued to others and the discriminatory treatment meted out to the full time teachers of private affiliated Law Colleges cannot be allowed to be perpetuated on the jejune ground of laches, delay or the like, but, as stated above, this would be one of the relevant factors to be taken into account while moulding the reliefs. Law Collges - Non-aided institutions prior to 1988-89 10. The next question is whether it will make any difference to the petitioners' claim on merits that private affiliated law colleges were not aided institutions prior to 1988-89. The petitioners' grievance is about the discrimination against teachers of law colleges in the Government Resolution dated 15.10.1994 (Annexure "B"). The relevant portion of the said Government Resolution reads as under :- "The question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the University under Education Department and in affiliated and aided non-government colleges in Gujarat was under consideration of the Government for some time past. After careful consideration, Government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Governments Servants under the revised Pension Rules, 1950 contained in the Appendic XIV-C to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution Finance Department No. FPS-1071-J dated 1.1.72 as amended from time to time should be made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in this State with effect from 1.4.1982. 1. a) for the purpose of this scheme :- (1) University means universities under Education Department established by the Acts. (2) A non-Government College includes non-Government affiliated Arts, Science, Commerce and B.Ed. Collges receiving grant-in-aid and managed by the private body and affiliated with the universities by the competent authority." The learned AGP strenuously submitted that since the law colleges were not aided institutions, insertion of the words "law colleges" in the Government Resolution dated 15.10.1984 will not be of any avail to the petitioners or other teachers of such private affiliated law colleges. This contention is certainly prima facie attractive if one were to frame the question to be considered as : "whether law colleges should be included within the scope of the Government Resolution dated 15.10.1984". 11. The petitioners have, however, raised a wider question whether there was any justification in not giving financial aid to the private affiliated law colleges prior to 1988-89. The plea of discrimination is not aimed merely at non-inclusion of the law colleges within the scope of the Government Resolution dated 15.10.1984, but the gravamen of the charge of discrimination is against the discriminatory treatment meted out to the teachers of private affiliated law colleges by not giving aid to such law colleges. This Court, therefore, rejects the contention urged on behalf of the State Government and holds that the petition is not confined to the narrow question whether law colleges were wrongly excluded from the scope of the Government Resolution dated 15.10.1984, but the controversy is on the wider canvass whether the teachers of law colleges were wrongly excluded from the benefit of payment of grant to the law colleges for payment of salaries and pension to full time teachers in such law colleges. In this connection, the learned counsel for the petitioners has rightly pointed out that no justification is given for treating the private affiliated law colleges on a different footing then the law colleges run by the State Government or by Universities where they are discharging the same function. There is also no justification for discrimination against full time teachers of law colleges vis-a-vis the full time teachers of Arts, Science, Commerce and Education colleges except that law colleges were alleged to be profit making institutions with surplus income and part-time teaching staff. This assumption made by the Paul Committee in 1977 could not have been accepted as valid for all time to come, especially when the petitioners and the Gujarat Law Teachers Association were clamouring for grant-in-aid to law colleges for payment of salary and pension to full time teachers since 1985 onwards. So also, there is no justification for discrimination vis-a-vis the full time teachers of other professional colleges like Medical and Engineering Colleges. In case of State of Maharashtra vs. Manubhai P. Vashi, AIR 1996 SC 1, the Hon'ble Supreme Court has in unmistakable terms held as under :- "These aspects necessarily flowing from Articles 21 and 39A of the Constitution were totally lost sight of by the Government