WP/4360/2008 of Ch. Srinivasulu, S/o.Ramanaiah, Vs The State of A.P., rep by its Secretary, on 29 December 2009

HON'BLE SRI JUSTICE V. ESWARAIAHHON'BLE SRI JUSTICE R. SUBHASH REDDYAND

HON'BLE SRI JUSTICE VILAS V. AFZUL PURKAR

WRIT PETITION Nos.25633 of 2007,25987, 27078 & 27079 of 2007, 4037, 4044,4360, 996, 1225 & 1234 of 2008 and 2096 of 2009

Date : 29.12.2009

Between :

B. Ramesh & others.

…..Petitioners

And

The Government of Andhra Pradesh, rep. by its PrincipalSecretary, Higher Education Department & others.

…..Respondents

HON'BLE SRI JUSTICE V. ESWARAIAHHON'BLE SRI JUSTICE R. SUBHASH REDDYANDHON'BLE SRI JUSTICE VILAS V. AFZUL PURKAR

WRIT PETITION Nos.25633 of 2007,25987, 27078 & 27079 of 2007, 4037, 4044,4360, 996, 1225 & 1234 of 2008 and 2096 of 2009

COMMON ORDER: (per Hon’ble Sri Justice R.Subhash Reddy)

All these writ petitions are filed, aggrieved by the commonorder passed by the A.P. Administrative Tribunal in O.A.No.7350of 2006 and batch, dated 10[th] September 2007, as such, all thepetitions are heard together and are being disposed of by thiscommon order. For the purpose of disposal, we refer to the factsas arise in W.P.No.2096 of 2009, which corresponds toO.A.No.310 of 2007 before the Tribunal.

2. The sole petitioner in W.P.No.2096 of 2009 was theapplicant before the Tribunal in O.A.No.310 of 2007, in which, theorder, dated 06.11.2006, passed by the 2[nd] respondent-Commissioner of Intermediate Education, was under challenge. By the aforesaid order, the 2[nd] respondent has cancelled theconsolidated pay of Rs.3,300/-, which was allowed to the petitionerand further ordered for continuance of the petitioner as a Part-timeLab Attender on the pay of Rs.1,000/- per month. In the sameorder, recovery was also ordered, alleging that the consolidatedpay of Rs.3,300/- was allowed to the petitioner irregularly.

3. There was a representation from the General Secretary ofVocational Lab Attenders’ Association to the Government, statingthat there were about 300 Lab Attenders working on Part-timebasis in various Government Vocational Junior Colleges in the State of Andhra Pradesh, and were being paid the consolidatedpay of Rs.1,000/-. The Commissioner of Intermediate Educationalso, vide his letter in Rc.No.B2/1535/2001, dated 4[th] December2001, submitted proposals for allowing minimum scale of pay plusD.A. to the Lab Attenders, who were appointed on or before25.11.1993 in Government Vocational Junior Colleges in the Stateof Andhra Pradesh. Having considered the representation of theGeneral Secretary of the Vocational Lab Attenders’ Association,and also proposals of the Commissioner of Intermediate Educationin the letter dated 4[th] December 2001, the Government has issuedorders in G.O.Ms.No.69, Higher Education (IE.I.3) Department,dated 03.09.2003, for payment of consolidated amount ofRs.3,300/- to the Lab Attenders (Vocational), who are appointed onor before 25.11.1993, and who have not completed 5 years ofservice by the aforesaid date.

4. Pursuant to the orders of Government issued inG.O.Ms.No.69, dated 03.09.2003, extending the benefit ofconsolidated pay of Rs.3,300/- as regular monthly salary, theVocational Part-Time Lab Attenders’ Association has submittedcertain proposals to the Director of Intermediate Education forsanction of minimum scale. The Director of IntermediateEducation, based on the orders issued by the Government inG.O.Ms.No.69, dated 03.09.2003, has issued orders, dated 21[st] ofOctober 2003 in Rc.No.VOC.II-2/740/2003, extending the benefit ofRs.3,300/- consolidated pay for all the Part-time Lab Attendersworking in the Government Vocational Junior Colleges. In thesame proceedings, the Principals of the Government Collegeswere instructed to follow certain instructions before drawl of suchsalary. The instructions, which are relevant for the purpose ofthese writ petitions, were to the effect that the candidate shouldhave passed SSC or ITI, and if any honorary services were

rendered by the candidates prior to 25.11.1993, the same will notbe considered for computing the total service etc. Petitioner wasone of the beneficiaries for extension of the scale and he wasextended the scale of pay of Rs.3,300/- per month.

5. When the 2[nd] respondent-Commissioner of IntermediateEducation noticed that large number of irregularities have takenplace while extending the benefit of the consolidated pay ofRs.3,300/- for Part-time Lab Attenders and that certain irregularappointments were made with the persons, who do not fit into thescheme for regularization, etc., staff of the State Institute ofVocational Education were deputed for verification of records inthe State. Based on the verification report, a show cause noticewas issued to the petitioner herein, who was working as a Part-time Lab Attender in MLT, Government Junior College, Parkal,Warangal District, to show cause, as to why the consolidated payof Rs.3,300/-, which was allowed to him irregularly, be notcancelled, on the ground that he was not in service as on25.11.1993. After considering the explanation filed by thepetitioner, the orders, dated 06.11.2006, were passed by theCommissioner of Intermediate Education, in Rc.No.VOC.I-A-2/173/2006-4, cancelling the consolidated pay of Rs.3,300/-granted to the petitioner, and ordered for recovery of such amountdrawn by the petitioner, by ensuring that the recoverable amountdoes not exceed 50% of the salary payable to him.

6. The order of cancellation was assailed before the Tribunalby filing O.A.No.310 of 2007, which is considered along with thebatch of cases, and by an order, dated 10[th] September 2007, theA.P. Administrative Tribunal has dismissed the said batch ofcases, confirming the orders of cancellation.

7. In this writ petition, it is the case of the petitioner that he was appointed as a Part-time Lab Attender initially in GovernmentJunior College for Girls, Mahabubabad in Warangal District, videproceedings in Rc.No.SPL/VOC/A/1993, dated 01.11.1993, on aconsolidated pay of Rs.650/- per month. Thereafter, he wastransferred to the Government Junior College, Govindaraopet,where he was joined on 01.02.1995 and worked as such upto22.08.2003. When the vocational course was closed in the saidcollege, he was transferred and posted in the 3[rd] respondent-college with effect from 22.08.2003 and is working as such sincethen. It is his case that though he is qualified for grant of minimumscale of pay of Rs.3,300/-, without assigning any valid reason, theorders of cancellation were passed. It is also stated in theaffidavit that inspite of producing necessary documents before theTribunal, the Tribunal has not considered the same and passed theimpugned orders.

8. The 2[nd] respondent-Commissioner/Director ofIntermediate Education has filed a detailed counter affidavit. In thecounter, it is stated that the petitioner was working as a Part-timeLab Attender in MLT at Government Junior College,Govindaraopet, Warangal District since 01.02.1995, takingremuneration from the Government funds. It is further stated thatdue to non-functioning of vocational course in the said college, hejoined in Government Junior College, Parkal, Warangal District on22[nd] of August 2003. It is stated that the period stated to havebeen worked by the petitioner from 01.11.1993 to 31.01.1995 atGovernment Junior College for Girls, Mahabubabad, WarangalDistrict was without remuneration from the Government funds,cannot be reckoned as qualifying service as per the Rules inforce, as there is no evidence of drawl of salary from theGovernment funds. It is further stated that the engagement ofpetitioner as a Part-time Attender from 01.02.1995 is contrary to

the provisions of A.P. (Regulation of Appointments to PublicServices and Rationalization of Staff Pattern and Pay Structure)Act, 1994. Further, it is stated that the Government orders inG.O.Ms.No.69, dated 03.09.2003, were issued for payment ofconsolidated pay of Rs.3,300/- to 350 Lab Attenders, who wereappointed on or before 25.11.1993, but have not completed fiveyears of service as on the said date. While generally denying thevarious other allegations made by the petitioner, it is stated that asthe claim of the petitioner was not fitting into the scheme notifiedby the Government in G.O.Ms.No.69, dated 03.09.2003, orderswere issued canceling the benefit extended earlier.

9. Heard learned Counsel Sri S. Laxma Reddy, SriV.R.Reddy Kovvuri, Sri K.Narayana, Sri D.Linga Rao and SriM.Surender Rao, appearing for the petitioners, and also thelearned Government Pleader for Higher Education and the learnedGovernment Pleader for Services-I, for the respondents.

10. In this batch of cases, it is submitted by Sri S.LaxmaReddy, learned counsel for petitioner in W.P.No.2096 of 2009 thatthe petitioner was appointed as a Part-time Lab Attender andworked as such in the Government Junior College, Mahabubabad,Warangal District with effect from 01.11.1993. It is submitted bythe learned counsel that in view of petitioner’s appointment in theGovernment Junior College with effect from 01.11.1993, it cannotbe said that he was not in service as on 25.11.1993 for extendingthe benefit of consolidated pay of Rs.3,300/-. It is submitted bythe learned counsel that, in any event, no directions can be givento continue the petitioner on the consolidated pay of Rs.1,000/- permonth, which is less than the minimum wages notified under theprovisions of the Minimum Wages Act, 1948. In support of hisargument, the learned counsel has relied on the judgmentsreported in People’s Union for Democratic Rights v. Union of India[[1]], in Sanjit Roy v. State of Rajasthan[[2]]and in State ofGujarat v. High Court of Gujarat[[3]]

11. Further, Sri D.Linga Rao, learned counsel appearing forsome of the petitioners, has submitted that as the petitioners arerendering services on par with the regular employees, theorders, which are passed cancelling the consolidated pay, are inviolation of the principle of ‘equal pay for equal work’.

12. On the other hand, it is submitted by the learnedGovernment Pleader for Services-I, appearing for the respondents,that to regulate the appointments and prohibit irregularappointments in the offices and establishments of the StateGovernment, Local Authorities, Corporations owned and controlledby the State Government, and to rationalize the staff pattern andpay-structure, the State of Andhra Pradesh has enacted Act 2 of1994, titled as ‘The A.P. (Regulation of Appointments to PublicServices and Rationalisation of Staff Pattern and Pay Structure)Act, 1994’. It is stated that after the said enactment, theGovernment has formulated a scheme for regularisation andabsorption of employees on consolidated pay, daily wages etc.,vide G.O.Ms.No.212, dated 22.04.1994, for those, who haveworked continuously for a minimum period of five years as on25.11.1993, subject to certain conditions. It is submitted that asper the orders issued by the Government in G.O.Ms.No.69, dated03.09.2003, the benefit of paying the consolidated amount ofRs.3,300/- was extended to only such Part-time Lab Attenders,who were appointed on or before 25.11.1993 and drawing aconsolidated pay of Rs.1,000/- per month. It is submitted that onverification, in the instant case, it was found that there was nodrawl of any amount from the Government funds towards thesalary of the petitioner prior to 01.02.1995. It is submitted that asthe very extension of consolidated pay of Rs.3,300/- to the petitioner was irregular, the same is rightly cancelled afterconducting the inquiry, and after issuing necessary notice.

13. The right of the petitioner for claiming the consolidated payof Rs.3,300/- per month is only pursuant to the scheme notified bythe Government and the orders passed in G.O.Ms.No.69, HigherEducation (IE.I-3) Department, dated 03.09.2003. In the aforesaidproceedings, while considering the representation of the GeneralSecretary of the Vocational Lab Attenders’ Association, and alsothe proposals submitted by the Commissioner of IntermediateEducation, Andhra Pradesh, Hyderabad, the Government hasordered for payment of consolidated amount of Rs.3,300/- permonth to the Lab Attenders (Vocational), who were appointed on orbefore 25.11.1993, but have not completed five years of service onthe said date in the sanctioned posts and drawing a consolidatedpay of Rs.1,000/- per month. Upon comprehensive reading of theaforesaid orders issued by the Government, it is amply clear thatto get the benefit of increased consolidated pay, one should havebeen appointed on or before 25.11.1993, and should have beendrawing a consolidated pay of Rs.1,000/- per month at that point oftime. In this case, though it is the case of the petitioner that hewas appointed with effect from 01.11.1993 as a Part-time LabAttender in Government Junior College for Girls, Mahabubabad,but there is no proof of drawl of his consolidated pay of Rs.1,000/-per month from the Government funds. On verification of records,it was found that the petitioner was drawing consolidated pay ofRs.1,000/- per month, only from 01.02.1995, but not earlier tothat. In the proceedings dated 21[st] of October 2003, issued inRc.No.VOC.II-2/740/2003, the 2[nd] respondent has issued specificinstructions to the Principals of Government colleges to ensurecertain things before drawl of salary. In the said instructionsissued, it is clearly stated that the honorary services will not be considered for the purpose of total service rendered prior to25.11.1993. Instructions also include that drawl of salary as perorders in G.O.Ms.No.69, dated 03.09.2003, will be subject topossessing necessary qualifications. The petitioner also did notplace any material before this Court or before the Tribunal, toshow that he was drawing a consolidated pay of Rs.1,000/- permonth pursuant to his appointment with effect from 01.11.1993. Inthe absence of any such material in proof of drawl of consolidatedpay prior to 01.02.1995, the petitioner, who is working as a Part-time Lab Attender, was not eligible for drawl of increasedconsolidated pay of Rs.3,300/-. In that view of the matter, we donot find any irregularity in the orders of cancellation.

14. Although it is contended by the learned counsel forpetitioner, basing on the judgments referred above, that thepetitioner cannot be allowed to continue in service by paying lessthan the minimum notified wages, but it is to be noted that theissue with regard to payment of minimum wages under theMinimum Wages Act, 1948, was not an issue either before theauthorities or before the Tribunal, so as to consider the same inthese writ petitions. In any event, the petitioner is a Part-time LabAttender, who cannot equate himself to a regular Attender, so asto claim any minimum wages. In that view of the matter, in theabsence of any factual foundation so as to adjudicate the saidissue, which did not arise for consideration before the authorityconcerned or before the Tribunal, the petitioner cannot seekdirection for drawl of the increased consolidated amount on theaforesaid ground, in the present writ petition.

15. Coming to the judgments relied upon by the learnedcounsel for petitioners, referred above, in the case of People’sUnion for Democratic Rights (1 supra), the Hon’ble SupremeCourt has held that where a person provides labour or service to

another for remuneration which is less than the minimum wage,the labour or service provided by him clearly falls within the scopeand ambit of the word ‘forced labour’ under Article 23 of theConstitution of India, and such person would be entitled to come tothe Court for enforcement of his fundamental right under Article 23of the Constitution, by asking the Court to direct for payment ofminimum wage to him, so that the labour or service provided byhim seizes to be ‘forced labour’ and the breach of Article 23 isremedied.

16. In the case of Sanjit Roy (2 supra), the Hon’ble SupremeCourt, while considering the scope of Rajasthan Famine ReliefWorks Employees (Exemption from Labour Laws) Act, 1964, hasheld that the payment of less than the minimum wages under theMinimum Wages Act, 1948 to workers employed in Famine Reliefwork, do constitute violation of rights guaranteed under Article 14of the Constitution of India.

17. In the case of State of Gujarat v. High Court of Gujarat(3 supra), the Hon’ble Supreme Court has considered the claim ofwages for prisoners, vis-à-vis, the rights guaranteed under Article23 of the Constitution of India, and held that prisoners are entitledto equitable wages for the work done by them during their period ofimprisonment.

18. However, having regard to the facts and circumstancesof the present batch of cases, the aforesaid judgments relied uponby the learned counsel for petitioners would not render anyassistance in support of their case.

19. Although it is argued that the impugned orders are inviolation of the principle of ‘equal pay for equal work’, but the samealso cannot be the ground to invalidate the cancellation orders. The only issue before the authorities was whether the applicants were qualified for drawl of consolidated amount as per the schemenotified by the Government, and whether they were fulfilling theeducational and other requisite qualifications for drawl of suchincreased consolidated amount. Having considered the same, andon verification of records, the respondents have found that thepetitioner would not fit into the scheme for drawl of increasedsalary, as such, ordered for cancellation of the benefit extended tohim. In any event, the petitioner, being a Part-time employeeworking in Vocational Colleges, cannot seek equal remunerationon par with regular employees. So far as the part-time employeesare concerned, it all depends on the number of hours of workentrusted to them, as such, the plea to apply the principle of ‘equalpay for equal work’ also cannot be accepted, so as to interferewith the cancellation orders. The Tribunal, in the batch ofapplications filed by the petitioners, having considered the issuewhether the petitioners have complied with all the conditions ornot, so as to justify the drawl of increased salaries, has held thatno case was made out to interfere in the matter, and therefore, itdismissed the applications filed by them. Even in the presentbatch of cases, having considered the entire material on record,we are of the view that all the petitioners in these cases were notfitting into the scheme as they were not fulfilling one criteria or theother notified by the Government in G.O.Ms.No.69, dated03.09.2003 for payment of the consolidated pay of Rs.3,300/- permonth. For the aforesaid reasons, and as no other contentions areadvanced, we find no merit in this batch of cases, so as tointerfere with the orders of the Administrative Tribunal, confirmingthe orders of cancellation of minimum time scale granted to thepetitioners.

20. At the same time, we are of the view that the consolidatedpay of Rs.3,300/- was paid to the petitioners pursuant to the

orders of Government in G.O.Ms.No.69, dated 03.09.2003. Though the petitioners were not fulfilling the criteria notified forextending the benefit of such pay, but however, they were grantedthe same without verifying the records properly, and there was nomisrepresentation or fraud on the part of the petitioners, whichresulted in extending such benefit to them pursuant to issuance oforders in G.O.Ms.No.69, dated 03.09.2003. In that view of thematter, taking into account the hardship that will be caused to thepetitioners in the event of permitting any recovery from their futuresalaries, we are of the view that no recoveries shall be made fromthe salaries payable to the petitioners, pursuant to cancellation ofthe minimum time scale extended to them.

21. Subject to the aforesaid directions, all these writpetitions are disposed of. No order as to costs.

_________________

V. ESWARAIAH, J

_____________________

R.SUBHASH REDDY, J

29[th] December 2009ajr

___________________________

VILAS V. AFZUL PURKAR, J

[1]AIR 1982 SC 1473

[2]AIR 1983 SC 328

[3]AIR 1998 SC 3164