Andhra Pradesh High Court - Amravati

Shak Mastan vs The State Of Andhra Pradesh on 1 August, 2022

           HON'BLE DR. JUSTICE K. MANMADHA RAO

                  WRIT PETITION No.5401 of 2020


ORDER :

This writ petition is filed under Article 226 of the

Constitution of India for the following relief:-

"to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the respondents in not paying the Time Scale in terms of the G.O.Ms.No 142, dated 27.8.2018 to the petitioners is illegal, arbitrary, unreasonable and violation of principles of natural justice and consequently direct respondents to pay the Time Scale in terms of the G.O.Ms.No.142 dated 27.8.2018 to the petitioners and to pass such other or further orders......."

2. The brief facts of the case are that earlier the

resolution passed by the Gram Panchayat dated 26.12.1990 in

which state that the gram panchayat appointed the petitioners

on tender basis on 1.1.1991 to 31.,12,1991 the Divisional

Panchayat Officer, Nuzvid issued proceedings dated 6.5.1991

and subsequently against the same DPO was issued

proceedings and extend the one more year i..e, dated

29.2.1992 and from time to time the same was extending. It is

stated that the Government issued.O.Ms.No.572 dated

28.12.2011 wherein stated that Tiruvur Gram Panchayat in

Krishna District has upgraded to Tiruvur Nagar Panchayat.

The service certificate also issued by the Commissioner Nagar

Panchayat, Tiruvur on 30.4.2012, stating that he is working

since 1.1.1991 to till date. Thereafter, the Commissioner of

Nagar Panchayat, Tiruvur dated 4.1.2013 in which the

petitioners herein mentioned that their date of engagement

since 1.1.1991 to till date. Thereafter the petitioners made

representation on 12.7.2019 to the 1st respondent and the

same is pending.

It is further stated that the 3rd petitioner Syed Saleem

Pasha, the gram panchayat passed resolution on 26.12.1990 in

which stated that engaging on tender/daily wages, accordingly

the DPO issued proceedings dated 30.11.1991 engaging the

contract basis for Rs.650/- per month for the period from

1.10.1991 to 30.09.1992 and thereafter the Commissioner,

Nagar Panchayat addressed a letter to Commissioner and

Director of Municipal Administration dated 4.1.2013 in which

clearly stated that he is working from 31.12.1999 and therefore

also he is working as on today discharging his duties and

specifically mentioned that 2.1.2000 onwards they are

engaging on daily wage basis and also said that the Tiruvur

Gram Panchayat is upgraded as Nagar Panchayat and the staff

were merged into parent department and the posts are vacant

in the Panchayat.

It is also stated that as per G.O.Ms.No.142, dated

27.8.2018 minimum time scale was given to daily wages/NMR/

Full time consolidated pay/Part-time employees who are

appointed before the cutoff dated 25.11.1993 and implemented

the same. As per respondent authorities statement it clearly

and categorically shows that the petitioners herein are working

from 1.10.1991 onwards. Earlier the petitioners also have

preferred O.A No.9209 of 2013 before the A.P. Administrative

Tribunal, Hyderabad for minimum time scale post attached to

the post of last grade service with all allowances like HRA DA

and as revised from time to time to the petitioners with arrears,

from the date of completion of 5 years service and also to

continue the pay scale with all consequential and monetary

and attendant benefits. But the same was dismissed.

Thereafter the petitioners made presentation dated 12.7.2019

but the respondents have not taken any action till now. Hence

the present writ petition.

3. Counter affidavit is filed by the respondents No.1 and

3 while denying all the averments made in the petition

contended that as per the information furnished by the

respondent No.4, the petitioners were appointed on 20.12.1992

on Contract basis for maintenance of Pipe Line works,

Electrical Motors and maintenance of fogging machine by the

then Divisional Panchayat Officer, As per the proceedings

issued by the Divisional Panchayat Officer, Nuzvid the

petitioners were engaged on contract basis only for the

maintenance of Sanitation, Water Supply and Lighting purpose

and they continued on contract basis up to 31.12.1997, the

Divisional Panchayat Officer, Nuzvid has further stated that

since January 1998, the erstwhile Gram Panchayat, Tiruvur

has engaged the labour through the contractor and since the

petitioners herein were also doing the said works as the

contract labour through the Contractor and they continued

their services under the Contractor till 2011. It is stated that

as per G.O.Ms.No.126 GAD, dated 18.10.2019 has established

the Andhra Pradesh Corporation for Outsourced Services

(APCOS) and all the names of the contract workers out

sourcing workers working as on the date of G.O. were uploaded

into the APCOS and since 01.10.2020 the petitioners have

been drawing their salaries through APCOS.

It is further stated that the G.O.Ms.No.142 Finance (HR-I

Plg & Policy) Department, dated 27.8.2018, it is mentioned

that the Full Time/NMRs/ Daily wages/ Consolidated

pay/part- time workers, who are already drawing minimum

pay + DA in the Revised Pay Scales, 2015 and for part time

employees who were appointed prior to 25.11.1993 and who

are working in various Government Departments, the State will

extend the minimum pay in RPS 2015 as per the Hon'ble

Supreme Court judgment in Civil ApepalNo.213 of 2013, dated

26th October 2016. The petitioners are appointed prior to the

dated 25.11.1993 and G.O.Ms.No.142 issued on 27.8.2018

and therefore the said GO is not applicable to the petitioners as

they are working as contract workers since 1991 and therefore

the benefit of payment of time scale cannot be extended to the

petitioners. Hence, prayed to dismiss the writ petition,

4. Counter affidavit is filed by the 4th respondent while

reiterating the contents made in the counter filed by the

respondents No.1 and 3, contended that Tiruvur Nagara

Panchayat is constituted vide G.O.ms.No.574 M.A & U.D

Department, dated 28.12.2011. During constitution of Nagar

Panchayat, the contract workers who have been worked in

Gram Panchayat are allowed to work on contract basis as per

the wages fixed by the Government in Tiruvur Nagar Panchayat

and by engaging them through contractor and disbursing

payment through respective contract agency only and since

1991 to till today they are working. It is further stated that it

is a policy matter to regularize the services of the petitioners

and allowing to grant minimum time scale. Further it was

observed that G.O.Ms.No.142 is not applicable to the

petitioners. Therefore, prayed to dismiss the writ petition.

5. Heard learned counsel appearing for the petitioners

and learned Government Pleader for Service s-IV appearing for

the respondents No. 1 to 3 and learned counsel appearing for

the respondent No.4.

6. In a case of P. Khadar Basha, S/o. Masthan Khan

and four others vs. State of A.P and others1, a Division

Bench of this Court held that the pay scale of pay, in Rule 31

(a) of Rule 9 of A.P. Fundamental Rules means pay which,

subject to any condition prescribed in those rules, rises by

periodical increments from a minimum to maximum. The scale

of pay has to change with the change of time by addition of

periodical increments and once the minimum pay scale is

extended to the temporary employees they are also entitled to

addition of increments from time to time in the minimum pay

scale, without being entitled to all other allowances to which

regular employees are entitled.

2017 LawSuit (Hyd) 445

7. It is apt to reproduce par It is apt to reproduce paras

7 to 12 of P. Khadar Bash (supra) as under:

"7. The learned senior counsel has also drawn our attention to the judgment of a Division Bench of this Court in Government of Andhra Pradesh and others Vs. S.Nageswara Rao and others, wherein this Court allowed a similar claim made by NMRs/temporary employees of certain municipalities. In this context, it is apt to extract the observations of the Division Bench below:-

There is no dispute that all of them were given regular scale of pay and also conferred the benefit of revised pay scales as and when new scales were implemented in the State of Andhra Pradesh. After giving regular scale of pay and also granting annual grade increments for some time, various Municipalities and Municipal Corporations stopped releasing increments and giving revised scales of pay, necessitating adjudication of the same by the Andhra Pradesh Administrative Tribunal. The respondents are casual/NMR/temporary Class-IV employees, who do similar work and discharge similar functions as any regular Class-IV employees. The principle of equal pay for equal work would bar the State or its agents from denying annual grade increments and revised scale of pay to the respondents. We are, therefore, not impressed with the argument that the grant of annual grade increments or grant of revised pay scales to the respondents would contravene the provisions of the A.P.Act 2 of 1994.

8. In our view, the petitioners are entitled to the relief claimed by them based on the above-mentioned precedents. Even otherwise also, going by the definition of time scale of pay in Ruling-31(a) of Rule-9 of the Andhra Pradesh Fundamental Rules, the petitioners are entitled to payment of increments. This Rule reads as under:

Time scale of pay means pay which subject to any condition prescribed in these rules, rises by periodical increments from a minimum to maximum. It indicates the class of pay hirtherto known as progressive.

9. The above-extracted definition of time scale of pay leaves us in no doubt that the scale of pay has to change with the change of times by addition of periodical increments. Otherwise the expression time scale would have no meaning at all.

10. In the light of the above discussion, we are of the opinion that as the petitioners have been extended the minimum time scale, they are entitled to addition of increments from time to time in the minimum time scale without being entitled to all other allowances which a regular employee is entitled.

11. The learned Government Pleader for Services (Andhra Pradesh) submitted that the Court may consider limiting the grant of annual grade increments to the petitioners to a reasonable past period as, the relief of payment of arrears, if granted from the time of extension of the minimum time scale to the petitioners, would cause huge burden on the exchequer.

12. Though in strict sense, the petitioners are entitled to all the arrears, keeping in view the fact that they have approached the Tribunal only in the year 2013 and also the public interest, we restrict the said benefit only from the date of filing of the said O.A. by the petitioners. The Writ Petition is, accordingly, allowed in part to the extent indicated above. The respondents shall revise the minimum time scale of pay of the petitioners by adding the annual grade increments as and when they fell due from time to time."

8. It is further apt to reproduce paragraph 8 of the

Government of Andhra Pradesh and others vs. S. Nageswara

Rao and others4 as under:

"8. After referring to Randhir Singh v. Union of India, (1982) 1 SCC 618 : AIR 1982 SC 879, Dhirendra Chamoli v. State of U.P., (1986) 1 SCC 637, Surinder Singh v. Engineer-in-Chief C.P.W.D., (1986) 1 SCC 639 : AIR 1986 SC 584, R.D. Gupta v. Lt. Governor, Delhi Admn., (1987) 4 SCC 505 : AIR 1987 SC 2086, U.P. Incometax Department Contingent Paid Staff Welfare Association v. Union of India, 1987 Supp SCC 658 : AIR 1988 SC 517, State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121 : AIR 1989 SC 19, and Bhagwan Sahai Carpender v. Union of India, (1989) 2 SCC 299 : AIR 1989 SC 1215, their Lordships observed that the State is obliged to make casual employees the same payment as the regular employees are getting because the emphasis in the decisions of the Court is upon the feature that equal pay for equal work is a Constitutional goal to our socialist polity. The Supreme Court in direction (1) gave a clear

direction to sanction annual grade increments to casual employees in the Government establishment."

9. In view of the aforesaid, the petitioners are held

entitled to the minimum of pay scale of pay, which on addition

of the annual increments changes from time to time, at par

with regular employees on respective corresponding posts.

10. The submission of the learned Government Pleader

with respect to the extent of establishment pursuant to the

G.O.Ms.No.57 dated 13.02.2019 and G.Ms.No.70 dated

29.02.2020, shall have no effect on the applicability of the

principle of equal pay for equal work to the case of contractual

employees, as the law declared by the Hon‟ble the Apex Court.

11. Accordingly, the Writ Petition is allowed. The