Arvind Manishanker Trivedi and Others vs State of Gujarat and Others

P.M. Chauhan, J.—The petitioners, the office bearers of Saurashtra University Affiliated Colleges Non-Teaching Staff Association, have challenged and prayed for quashing the Government Resolutions dated October 18, 1977, April 7, 1978, April 12, 1978 and March 5, 1979 as arbitrary, without jurisdiction and contrary to the Ordinance No. 189 issued by the Saurashtra University and also for direction to the respondents not to compel the petitioners to exercise the option as per G.R. dated March 5, 1979, by which the petitioners are compelled to exercise the option to accept the pay scales and also for direction that the deeming fiction in the G.R. dated March 5, 1979 should not be considered as operative.

The Saurashtra University is incorporated by the provisions of Section 3 of the Saurashtra University Act. Various Colleges are affiliated to the Saurashtra University and they are the Government Colleges as well as the Colleges run and managed by the Trust or registered Societies. The Syndicate of the Saurashtra University exercises its various powers as envisaged in Section 20 of the Act. The Syndicate of the Saurashtra University can appoint teachers and servants of the University, fix their emoluments and define their duties and the conditions of their service and discipline. The Syndicate has also certain powers relating to the affiliated Colleges, including the powers of ensuring the proper conditions of employment for members of their staff. In Saurashtra University certain Colleges are under the direct control and management of the Government while the rest of the affiliated Colleges are run and managed by the Trust or registered Societies. Such Colleges are having teaching and non-teaching staff members. The present petition is pertaining to the pay scales and allowances of non-teaching staff members of such affiliated Colleges.

Because of the recommendations of Dr. Samuel Paul Committee and various Government Resolutions, which 1 shall discuss at the relevant stage, grant-in-aid is given by the Government to the affiliated non-Government Colleges to meet the expenses of pay etc. While laying down the policy of the grant-in-aid, the Government also issued several Circulars fixing the pay scales of the non-teaching staff of the affiliated Colleges for the purpose of the grant-in-aid. As the Second Pay Commission, headed by Justice D.A. Desai, was appointed, and the recommendations were accepted by the Government and made applicable from 1-1-1973, the non-teaching staff members of the affiliated Colleges also insisted for such pay scale. On representation, the Government extended the said pay scales for non-teaching staff of the affiliated Colleges for the purpose of grant-in-aid on several conditions. Meanwhile, the Saurashtra University issued Ordinance No. 189 on April 27, 1974, fixing the pay scales of certain cadres of the non-teaching employees on the staff of the Colleges affiliated to the Saurashtra University. So far as that pay scales were concerned, they were almost on parity with the pay scales recommended by the Second Pay Commission. The Saurashtra University, however, amended the said Ordinance and by Ordinance No. 189 3(A) dated February 9, 1977, fixed different pay scales of such employees as applicable from April 1, 1974. Pay scales of certain cadres, viz. Registrar, Accountant and others, as specified in the said Ordinance are higher than the pay scales recommended by the Second Pay Commission and accepted by the Government, by the Gujarat Civil Services (Revision of Pay) Rules, 1975. As stated above, the Government, by various Resolutions, fixed the pay scales of the employees of such affiliated Colleges, mostly on parity with the pay scales prescribed by the Gujarat Civil Services (Revision of Pay) Rules, 1975, for the purpose of grant-in-aid. The petitioners and similarly situated employees had a grievance as the pay scales prescribed by the Government for the purpose of grant-in-aid are lower than the pay scales prescribed by the University under Ordinance No. 189. The Government had given the option to the non-teaching staff of such affiliated Colleges for accepting the pay scales prescribed by the Second Pay Commission, i.e., by the Gujarat Civil Services (Revision of Pay) Rules, 1975, with effect from 1-1-1973 or to continue in the existing scales (existing as on 31-12-1975), but as the affected employees made a representation as the said option would work harsh against them and requested for the option from the date which may be beneficial to them, the Government directed that the non-teaching staff of such Colleges may be given option to opt for new scales from the date beneficial to them, but it shall be with reference to the pay scales in force on December 31, 1972 or the pay scales revised by the Universities thereafter excluding the pay scales revised by some of the Universities on the basis of the pay scales recommended by the Second Pay Commission for the University staff. It was also directed that the opinion should be exercised within a period of two months from the date of the order, failing which they shall be deemed to have opted for the revised pay scales. The petitioners have grievance as they are compelled to give option, as according to them, the University is the only competent body to fix the pay scales and the University, in exercise of the powers conferred by statute, has fixed the pay scales and, therefore, they are entitled to the said pay scales nor can they be compelled to exercise the option. According to the petitioners, the Government has powers to issue Government Resolutions only for the purpose of governing their relationship between the management of the private affiliated Colleges and the Government in respect of the grant-in-aid and cannot issue G.R. or orders to determine the pay scales of the petitioners and other members of the non-teaching staff of the private affiliated Colleges, whose conditions of service are lawfully laid down by Ordinance No. 189. According to them, the Government or the University or the respondent-Colleges cannot compel the petitioners to opt for the pay scales which are lower than what the petitioners are receiving. The apprehension of the petitioners is that not only their pay scales will be reduced, but recovery will also be made from them. The petitioners have accordingly challenged the above referred Circulars and the directions issued.

The Saurashtra University and the three Colleges, which are the respondents, have not preferred to file any return. Shri J.R. Nanavati, learned Advocate appearing for respondent No. 2-Saurashtra University, has only stated that the Saurashtra University, being an autonomous body, has exercised the powers u/s 20 of the Saurashtra University Act and has issued the Ordinance, fixing the pay scales of the non-teaching staff employees of such affiliated private Colleges and such Colleges are bound to receive the direction of the University; otherwise they will be liable for disciplinary action. Shri Nanavati has also asserted that the Government should respect the pay scales fixed by the University and give grant-in-aid on the basis of the pay scales fixed by the University. In short, the respondent-Saurashtra University has supported the contentions of the petitioners. The three Colleges has not preferred to file any return or appear. The only contending respondents are the State of Gujarat and the Director of Education.

Respondents Nos. 1 and 2 have controverted the contentions of the petitioners and have that at the request of the non-teaching staff of the employees of the private affiliated Colleges of Saurashtra University, the pay scales recommended by the Second Pay Commission and accepted by the Government are extended for the purpose of the grant-in-aid and the petitioners are not entitled to any higher pay scale than prescribed by the Government. It is also contended that out of 146 such non-teaching staff members, 85 of them have opted and accepted the pay scales prescribed by the Government. It is also contended that out of 146 such non-teaching staff members, 85 of them have opted and accepted the pay scales prescribed by the Government while only 61 of them have adopted the pay scales fixed by the University. In submission of the respondents Nos. 1 and 2, in case the pay scales fixed by the University are allowed to be continued and the Government is compelled to pay grant-in-aid on the basis of such pay scales, then it would amount to compelling the Government to discriminate between the non-teaching staff of the Government Colleges and other staff members, who have already adopted the Government pay scales, and also of the non-teaching staff employees of the private affiliated Colleges of other Universities. It is contended that the Government cannot be compelled to give grant-in-aid for the higher pay scale of such small section of the employees and discriminate against other such employees. Even that will be violative of the provisions of Articles 14 and 16 of the Constitution of India.

The prime question requiring consideration is as to whether Government or the University has powers to fix the pay scale of the non-teaching staff employees of the private Colleges affiliated to the University of Saurashtra. Admittedly, the non-teaching staff employees are the employees of the Colleges, which are run by the Trust or registered Societies. The Government has no direct control over such Colleges except for certain purposes, either specified in the Saurashtra University Act or in the various Circulars issued for the purpose of grant-in-aid. The relationship between the petitioners and similarly situated non-teaching staff members of such private affiliated Colleges is of employee and employer with the Management of such Colleges and not with the University or the Government. The Syndicate of the Saurashtra University has powers to appoint teachers and servants of the University and to fix the emoluments and define their duties and conditions of their service and discipline. It has, however, some controlling power over such staff members as specified in Clause (xvii) of Sub-section (1) of Section 20 of the Saurashtra University Act, which provides that the Syndicate shall exercise the powers to arrange for and direct the inspection of affiliated Colleges and the Hostels and to issue instructions for maintaining their efficiency and or ensuring proper conditions of employment for members of their staff and in case of disregard of such instructions, to modify the conditions of their affiliation or recognition or take such steps as it deems proper. In exercise of this powers, the Saurashtra University has issued Ordinance No. 189. It is not necessary for me to consider as to whether the Saurashtra University has jurisdiction to fix the pay scales of the non-teaching staff employees of such affiliated Colleges or not, as it is not required for the purpose of the present petition and, therefore, I shall proceed on the assumption that the University has such powers. Any such dispute can be decided only if a contention is raised by such affiliated Colleges, challenging the powers of the Saurashtra University. As it is not challenged, I do not think it proper to decide that point. It is, however, clear that so far as the Government is concerned, it has no direct control for the employment or fixing the conditions of service of the non-teaching staff employees of such Colleges. Admittedly, there is no relationship of employer and employee so far as such employees and the Government are concerned. It should, therefore, be held that the Government has no powers or jurisdiction to fix the pay scale of the employees of such private affiliated Colleges. In view of that, the Government cannot compel such non-teaching staff employees of the private affiliated Colleges, either to accept the pay scales prescribed under the Gujarat Civil Services (Revision and Pay) Rules, 1975 or to exercise the option as prescribed in that Rule. The direction issued by the Government by G.R. No. NGC-1377/16672/Kh, dated March 5, 1979, therefore, is not legal and valid and is required to be quashed. As such, it appears that the said direction is issued only for the purpose of the grant-in-aid and not for any other purpose.

This requires me to consider as to what is the liability of the Government for the financial assistance for the grant-in-aid to such affiliated Colleges. Prior to 1972, the Government accepted as a policy to give some assistance to such affiliated private Colleges and accordingly, issued various Circulars. The Government appointed a Committee on June 3, 1971, to go into the questions of the financial structure of the Science, Commerce, Arts and Education Colleges and on the basis of the recommendations, the grant-in-aid pattern was revised by the Government from June 23, 1972. By Government Resolution dated February 14, 1974, on further accepting the recommendation of the Committee, fifty per cent of deficit calculated on the items of income and expenditure as laid down in G.R. dated June 23, 1972 was accepted to be borne by Government on certain conditions. Another Committee to go into the question of the grant-in-aid was appointed in 1975, but the Chairman resigned. Meanwhile the new pattern 10 + 2 + 3 of Higher Secondary Education was implemented from the year 1976 and, therefore, the Government decided to appoint a Committee to consider various problems relating to the Colleges. Accordingly, by G.R. No. NGC-1376/Kh dated June 28, 1976, a Committee headed by Dr. Samuel Paul, popularly known as "Paul Committee", was appointed. Some of various terms of reference to the Committee, were:

(1) to examine the financial structure of non-Government Colleges receiving grant-in-aid and to take a review to financial structure of such Colleges in general and to analyse the cause for financial difficulties of Science Colleges in particular, and

(2) to suggest co-ordination of facilities, staff, equipment etc., for preventing duplication and effecting economy in expenditure by Colleges.

The non-Government affiliated Colleges in the State of Gujarat, in the view of the Government, were mostly in need of such financial assistance and, therefore, the object of appointing such Committee stated to be that:

Committee to go into the question of financial difficulties to the non-Government Colleges.

By G.R. No. NGC-1377/30333-KH dated June 10, 1977, the Government accepted several recommendations of Dr. Samuel Paul Committee. The recommendations of the Committee regarding contribution of Government was that:

Government should bear, after the total income/deemed income from tuition-fees is taken into consideration all the residual responsibility for the pay packet of teaching and non-teaching staff. It should also bear a proportion of the cost on account of libraries, laboratories, student services, physical education and games and sports.

The recommendation for the uniform tuition-fees was accepted. The Committee also recommended that for 11 specific purposes specified in the recommendations of the Committee, the grant should be adopted. For the purpose of maintenance, it is recommended under the caption "pay packet" that:

The Grant-in-aid should be equal to the expenditure on salaries and allowances of approved staff minus the amount of tuition-fees due to be collected or deemed to be collected.

The Government accepted this recommendation on the condition that the existing definition of "pay packet" should continue to be in force, but the gratuity amount will not be included in the total pay packet and that the strength of teaching and non-teaching staff for the purpose of payment of grant-in-aid should be as per the norms to be prescribed by the Government. One of the recommendations of the Committee was that all the affiliated Colleges should be run by Societies registered under the Societies Registration Act and that was accepted subject to the modification that the Public Trusts managing the Colleges should convert themselves into Registered Societies under the Societies Registration Act, 1860 within a period of three years commencing from June, 1977 and no grant will be paid to such Colleges run by public Trust after expiry of the stipulated period. It was also recommended by the Committee that it is obligatory on the affiliated Colleges to supply the information, which the Government may need from time to time. On consideration of the Report of Paul Committee, the Government issued G.R. No. NGC-1377-KH dated July 27, 1977, declaring the clear policy that from the year 1977-78, non-Government affiliated Arts, Science, Commerce and Education Colleges, which were eligible for Government grant at that time under the them existing orders and Colleges that would be eligible for grant under the new criteria should be paid grants of the types specified in the said G.R. Under the caption "Maintenance Grant" sub heading (1) "Pay Packet Grant", it is specified that:

Grant-in-aid on pay packet should be equal to the difference between the total pay packet of approved staff in the approved pay scales-teaching and non-teaching and the amount of tuition-fee deemed to be collected.

while specifying the pay packet, it is specified that :

(a) Total pay packet of the teaching and non-teaching staff should include the following items:

(i) Pay, (ii) Dearness Allowance, (iii) House Rent Allowance at the rates and at the places admissible to Government employees, (iv) Compensatory Local Allowance at the rates and the places admissible to Government employees, (v) Contribution of the institution towards Provident Fund, and (vi) such other allowances as are prescribed by the Universities on the lines of the allowances admissible to State Government employees with the previous approval of the State Government.

It is also provided that the expenditure on this account should be debited to budget head "Demand No. 35-277-Education (E) University and other Higher Education (C) Assistance to non-Government Colleges". It is, therefore, apparent that the Government had come out with a clear policy that the grant-in-aid on pay packet should be for the approved staff in the approved pay staff scales. If the staff strength is not approved, or more than that, the Government is not liable to give grant-in-aid for excess staff. Similarly, if the pay grant-in-aid for excess amount. It is never the case of the petitioners that the pay scales prescribed by the University by Ordinance No. 189 were ever approved by the Government.

Before proceeding on to consider the various Resolutions issued by the Government on the basis of the recommendations of the Committee, it should be observed that even though the Committee recommended for liberal approach for the grant-in-aid for the pay etc., it never recommended that 100% grant for the pay and allowances of the employees of such affiliated Colleges should be given. On the contrary, it is clear that such grant can be only after deduction of the amount collected for tuition-fees etc. and that too, for the approved staff in the approved pay scales which may be prescribed by the Government. In policy, therefore, the Government never accepted that 100% grant for whatever pay which may be fixed by the University or by the affiliated Colleges for non-teaching staff employees should be given by the Government. The petitioners have not produced any rule or policy decision or Circular by the Government, under which the Government can be compelled to pay grant-in-aid to equalise the liability of the pay of such employees. Even considering the subsequent G. Rs., the policy of the Government is clear that the grant-in-aid should be given only to the extent of the pay recommended by the Second Pay Commission and accepted by the Government. The contention of the petitioners for compelling to give grant-in-aid equal to the liability of their pay and emoluments, therefore, deserves to be rejected.

The Paul Committee had recommended that the Second Pay Commission pay scales may be extended to the non-teaching staff of affiliated colleges and the Government accepted the said recommendation and, therefore, by the Resolution No. NGC-1377-KH dated October 19, 1977, the Government directed that the pay scales specified in it, which were applicable to the non-teaching staff of the Government Colleges may be extended to the non-teaching staff of the private Arts, Science, Commerce and Education Colleges in receipt of grant-in-aid and may be held admissible for the purposes of grant-in-aid, on the conditions specified in it. It also made clear that if the conditions are not observed, the expenditure shall not be held admissible for the purposes of grant-in-aid. That order was made effective from April 1, 1977, but by subsequent G.R. dated April 7, 1978, it was made effective from January 1, 1973, and it was also directed that the arrears may be paid with effect from April 1, 1977. That was also amended by G. R. dated May 12, 1978, and it was directed that the arrears should be paid from April 1, 1976. By G.R. dated April 7, 1978, it was specifically directed that the non-teaching staff may be given option, either to opt for the Second Pay Commission scales with effect from 1-1-1973 or to continue in existing University scales (existing as on 31-12-1972), and that they cannot exercise option to come over to the Second Pay Commission pay scales from a date subsequent to 1-1-1973. It was also stated that the pay should be fixed as per the Pay Fixation Formula adopted in the case of non-teaching staff of the University on the basis of the emoluments drawn on December 31, 1972. Whatever directions issued under this G.R. are only for the purpose of grant-in-aid and for the approval of the pay scales. Shri Tanna, learned Advocate for the petitioners, while referring to Sub-clause (ii) of Clause 2 of the G.R., which provides for additional grant to those Colleges, which had not paid the salary as per the scales revised by the University (Pre-Desai) if they pay in the revised pay scales for the period upto December 31, 1976, submits that specific provision is made in the G.R. for providing additional grant on the basis of the higher pay scale fixed by the University and by that, the Government has taken additional liability to pay by way of grant-in-aid. In submission of Shri Tanna, by making specific provision, the Government has taken the liability for such higher pay scale from January 1, 1973 to December 31, 1976 and the right of the petitioners follow from this. Shri Tanna also submits that the management has paid the salary on the basis of higher pay scale as fixed by the University and the Government has also continued to give the grant-in-aid on that basis and even after that, under the orders of this Court upto December 31, 1985. This submission cannot be easily accepted as it is clear from the Government policy that the grant-in-aid should be given only for the approved scales and that too, after certain deductions, as discussed above. Apart from that, the provision for the additional grant appears to have been made as the appropriate scales were accepted from January 1, 1973 and some difference was required to be paid to the non-teaching employees of the affiliated Colleges. Under the Gujarat Civil Services (Revision of Pay) Rules, 1975, provision is made for arrears, as the recommendations of the Second Pay Commission were accepted from January 1, 1973. In Rule 11 of the Gujarat Civil Services (Revision of Pay) Rules, 1975, The provision is that no arrears shall be paid in respect of revision of pay for the period from January 1, 1973 to December 31, 1973 and the arrears for the period from January 1, 1974 to December 31, 1975, shall be credited in the General Provident Fund Accounts of the Government servants concerned in one instalment commencing from 1st day of August, 1976, subject to certain conditions. It is, therefore, apparent that because of the application of such pay scales, higher liability would arise and, therefore, specific provision appears to have been made in Sub-clause (ii) of Clause 2 of G. R. dated April 7, 1978.

The two G.Rs. dated May 12, 1978 and May 23, 1978 are not much relevant as by these G.Rs. it was decided to give the arrears from April 1, 1976 and revised pay scales were prescribed for the Physical Training Teachers.

By G.R. dated March 5, 1979, against which the petitioners have grievance, the Government directed for option. It appears that as the pay scales prescribed by the Second Pay Commission for the non-teaching staff of the private affiliated Colleges were accepted for the purpose of the grant-in-aid under the various Government Circulars, as discussed above, and as the non-teaching staff members were given option either to opt for the Second Pay Commission pay scales with effect from January 1, 1973 or to continue in the existing University Pay Scales (existing on 31-12-1972) some hardship was caused to such staff members and, therefore, they made a representation and their request was accepted by the Government and accordingly, the Government directed that non-teaching staff of such Colleges be given option to opt for new scales from the date beneficial to them, but it shall be with reference to the pay scales in force on December 31, 1972 or the pay scales revised by the University thereafter, excluding the pay scales revised by some of the Universities on the basis of the pay scales recommended by the Second Pay Commission for the University staff. It was also directed that the option should be exercised within a period of two months from the date of the orders, failing which they shall be deemed to have opted for the revised pay scales. The grievance of the petitioners is that as they were getting higher pay scales, they cannot be compelled to accept pay scales as prescribed by the Second Pay Commission and, therefore, the deeming clause should not be made applicable to them. As discussed above, the fixation of the pay scale of such non-teaching staff employees of the affiliated Colleges by the University is a matter between the employer and the employee and the University. The Government, by such G.R. cannot direct to accept the pay scales and, therefore, the petitioners or the members of the Association cannot be compelled to give option and, therefore, such direction is not legal and valid. However, as discussed above, the pay scales are approved by the Government for the purpose of grant-in-aid and, therefore, for the purpose of giving the grant-in-aid, the Government can make such pay scales applicable and also calculate the amount only on the basis of the pay scales which are approved and from the date approved by the Government. It is clear that so far as the Government employees were concerned, they were also given such an option. The purpose of giving option was to see that certain Government employee may not be put to disadvantage by accepting the revised pay scales. The contention of the petitioners, therefore, that they should not be compelled to opt for a particular pay scale and in case they failed to do it, they should not be considered as having opted for such pay scale under the deeming provision, should be accepted. As made clear, such direction should be considered only for the purpose of the grant-in-aid to be given by the Government for such affiliated Colleges. If such option is not exercised or such pay scale is not accepted, the Government can conveniently refuse to give the grant-in-aid higher scale of the pay which such employees were getting. If at all such affiliated Colleges have given higher pay scale to the employees either on the basis of the pay scale fixed by the University or otherwise, it would be the liability of such affiliated Colleges and such liability of higher pay scale cannot be passed on to the Government. The Government cannot be compelled to give the grant-in-aid on the basis of the higher pay scale as such an act by itself would be discriminatory amongst of the employees, who have opted for the pay scales or such employees of the Government managed Colleges or such other Colleges which have adopted such pay scales. It is submitted that the Government has given the grant-in-aid at such higher rates for such employees of Bhavnagar University and even to the respondent affiliated Colleges upto a particular period. No documentary evidence or data of the Bhavnagar University or the affiliated Colleges of the Bhavnagar University is produced and, therefore, such factual aspect cannot he accepted. Even if it may be that grant-in-aid is given by the Government at the higher scale, that by itself cannot be a ground for directing the Government to pay to the petitioners or the similarly situated persons, as no such direction discriminating and violating the very provisions of equality can be issued to the Government. If the Government has committed any mistake in giving grant-in-aid at the higher scale, that cannot be a ground or basis for the direction to give grant-in-aid at the higher scale to the affiliated Colleges by which the petitioners are employed.

It is apparent that the specific date of the pay scales for the purpose of option was fixed in the G. R. as some of the Universities, like the Saurashtra University, have fixed some pay scales higher than the pay scales prescribed by the Second Pay Commission. If the employees are allowed to given option to accept such higher pay scales, then they will be at a higher advantage than other such employees. Such a situation could never have been agreed to by the Government and, therefore, a specific date is rightly fixed by the Government by the said G.R.

It is submitted by Shri B.P. Tanna, learned Advocate of the petitioners, that the pay scales of the petitioner and similarly situated persons fixed by the University cannot be considered to be the pay scales revised on the basis of the pay scales recommended by the Second Pay Commission for the University staff. The contention of Shri Tanna cannot be accepted as it is admitted by the petitioners in the petition that on or about June 19, 1976, the pay scales of the University non-teaching employees as per the recommendations of the Second Pay Commission were announced and in accordance with the said recommendations, the University revised the pay scales of its own non-teaching employees and subsequently by the amendment in Ordinance No. 189 carried out on February 8, 1977, the pay scales or non-teaching staff were also appropriately revised retrospectively with effect from 1-4-1974. That fact is also clear from the letter addressed by the Vice Chancellor to the Secretary, Finance Department, Government of Gujarat on March 23, 1979 (Annexure "C"). The Vice Chancellor specifically stated that the Government accepted the recommendations of the Second Pay Commission and decided to apply the said pay scales for the non-teaching staff of the Universities and made it applicable from January 1, 1973 and because of that, the question of revision of the pay scale of the non-teaching staff of the affiliated Colleges also came up for consideration before the University and accordingly, the Ordinance No. 189 was amended and was made applicable from 1-1-1974. From the said letter also, it is clear that the pay scales were revised only on the basis of the recommendations of the Second Pay Commission. It is, therefore, clear that the pay scales were revised by the University on the basis of the pay scales recommended by the Second Pay Commission for the University staff.

It is submitted that the apprehension of the petitioners is that recovery will be directed from them because of the salary which they got because of the higher pay scale fixed by the University and the difference of the pay scale directed by the Government. As discussed above, it is a matter of relationship between the petitioners and the employers and at the most, the University, and not the Government, as the petitioners and similarly situated employees are not the employees of the Government and, therefore, the question of recovery from them by the Government does not arise. If at all the recovery is to be made, that will be by the affiliated Colleges, under which they work. So far as the Government is concerned, the liability of the Government is to pay the grant-in-aid only on the basis of the approved pay scales after permissible deduction and nothing more than that. If at all the Government has paid grant-in-aid to the affiliated Colleges on basis of a higher scale, it is for the Government to consider as to in what manner the adjustment should be made. If the Government has paid the grant-in-aid on the basis of higher pay scales under the orders of this Court, the Government will be entitled to adjust it in the grant-in-aid, which is given or may be given to the affiliated Colleges. That is, however, for the Government to consider as to what action it should take. If the Government is inclined to condone, there cannot be any objection. However, this Court should restrain itself from expressing any view as that is not the point at issue for consideration by this Court.

Shri Tanna, learned Advocate for the petitioners, submitted that the petitioners are not given the pay scales fixed by the Government on the basis of the New Pay Commission recommendations from January 1, 1986 as the pay scales of the petitioners are not fixed on the basis of the pay fixed by the Second Pay Commission. Shri Tanna also makes it clear that the petitioners are prepared to accept the pay scales fixed by the Second Pay Commission, but also states that the difference may not be recovered from them. As it is not the point at issue for consideration before me, I do not wish to express any view on that.

In view of the above discussion, it should be held that the direction given by the Government by the various Circulars, as discussed above to accept the pay scale as recommended by the Second Pay Commission and accepted by the Government as per the Gujarat Civil Services (Revision of Pay) Rules, 1975 as applicable to the non-teaching staff employees of the affiliated Colleges and that the option should be exercised as stated in the G. R. dated March 5, 1979, is not legal and valid and is not binding on the petitioners or the affiliated Colleges.

It is, however, made clear that the said instructions are issued only for the purpose of grant-in-aid for the purpose of approved pay scales for fixing the quantum of the grant-in-aid and the Government is and was liable to give the grant-in-aid only on the basis of such approved pay scales, after deducting permissible amount, and is not liable to pay or give the grant-in-aid to such affiliated Colleges on the scale higher than the said scales approved by the Government. This Special Civil Application is accordingly allowed to that extent and Rule is made absolute to that extent, with no order for costs.