K.Sirin Kavitha vs The State Of Andhra Pradesh
2022 Latest Caselaw 9390 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

             WRIT PETITION No.14766 OF 2016

ORDER:

The present Writ Petition is filed under Article 226 of the

Constitution of India challenging the Memo No.8441/CE/A2/

2008 dated 13.10.2014 issued by the 1st respondent, as it is

arbitrary, illegal and discriminatory. By way of the said Memo,

the 1st respondent rejected the request of the petitioner herein

for admission into Grant-in-Aid post w.e.f. 17.06.2002 instead of

14.11.2005, as was done in the case of Smt. K.Madhavi, working

as Lecturer in English of the same college of the 3rd respondent

herein.

2. The petitioner herein was selected as Lecturer in

Political Science, vide proceedings Rc.No.347/Admn.-VI-2-/2001

dated 05.05.2002 and appointed on 29.05.2002. One Smt.

K.Madhavi is also selected and appointed on 29.05.2002 as

Lecturer in English. The said appointments of the petitioner

herein and Smt. K.Madhavi were challenged by Smt. Kelangi

Indira Kumari, vide W.P.No.7264 of 2002 and the petitioner

therein has withdrawn the said Writ Petition against Smt.

K.Madhavi. On withdrawing the said Writ Petition, the

respondents herein have considered the case of Smt. K.Madhavi

and regularized her services from the date of her first

appointment, whereas the case of the petitioner herein was

considered by the respondent-authorities approving her selection

as Lecturer in Political Science with prospective effect with effect

from 14.11.2005 instead of 17.06.2002 on which date she was

originally joined in the said post. Writ Petition No.7264 of 2002

was dismissed, vide order dated 19.07.2005. After disposal of

the said Writ Petition, the petitioner herein made a

representation before the respondents to consider her case to

admit her into Grant-in-Aid post from the date of her joining into

service, i.e., 17.06.2002. The respondents by an order dated

11.11.2005, were pleased to approve the case of the petitioner

herein with prospective effect. Aggrieved by the said order, the

writ petitioner herein filed W.P.No.12812 of 2008 before the

composite High Court and the said Writ Petition was disposed of

on 31.10.2012 in the following manner:

"If the budgetary sanctions do not allow the State Government any liberty or freedom to approve the appointment with retrospective effect and also pay for her services, they could have as well approved her appointment with effect from 17.06.2002 confining the monetary benefit with effect from 11.11.2005. That would have helped in parity of treatment in principle between the case of the writ petitioner and Ms. K.Madhavi. A terse conclusion reached by the Government in the impugned order sans any reason, is therefore not justifiable and hence, I have no hesitation to set-aside the impugned order of the State Government contained in their memo No.13263/CE.II-12006-2 dated 16.04.2008 and direct the State Government to reconsider the issue and pass appropriate orders."

3. Basing on the said order, the respondents herein

have passed the present impugned Memo dated 13.10.2014,

stating that it is not feasible for acceptance for admission into

Grant-in-Aid post with effect from 17.06.2002 instead of

14.11.2005 and the same is rejected. Aggrieved by the said

Memo, the present Writ Petition came to be filed on the ground

that the services of one Smt. K.Madhavi, similarly situated

person, were regularized from the date of her first appointment

with effect from 17.06.2002 and the case of the petitioner is not

considered by the respondent-authorities on par with Smt.

K.Madhavi, which is arbitrary, bias and violative of Article 14 of

the Constitution of India and therefore sought to set aside the

impugned Memo and consequently prayed to direct the

respondents to consider the case of the petitioner herein to

admit her into Grant-in-Aid post with effect from 17.06.2002

instead of 14.11.2005.

4. Learned counsel for the petitioner has relied on a

judgment of the High Court of Jharkhand at Ranchi in the case

of Employer in relation to Management of Food Corporation of

India, a Body Corporate incorporated under the Food Corporation

of India Act, through its Area Manager, Manoj Kumar v. Anil

Kumar1 in W.P. (L) No.3745 of 2009 for the proposition that the

workman is entitled for equal pay for equal work. Relevant

paragraph of the said judgment is extracted hereunder:

"11. The law is well settled that there has to be equality before the law, the workman is entitled for

2020 SCC Online Jhar. 878

equal pay for equal work. Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of Directive Principles of State Policy, as contained in Article 39(d) of the Constitution of India, "Equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the Constitutional mandate of equality in Articles 14 and 16 of the Constitution of India. It ensures a welfare socialistic pattern of a State providing equal opportunity to all and equal pay for equal work for similarly placed employees of the State. It has elaborately been dealt with in the case of Grih Kalyan Kendra Workers' Union V. Union of India reported in (1991) 1 SCC

619."

5. Per contra, learned Government Pleader, reiterating

the contents of the counter-affidavit, would submit that as per

the G.O.Ms.No.78 Education dated 15.03.1996, in case, there is

an aided vacant post and adequate work load in the said college,

the person can be admitted from the date of issue of the

government orders and he would also contend that even

assuming that regularization of services of Smt. K.Madhavi was

considered from the date of her first appointment, which is

contrary to the G.O.Ms.No.78 dated 15.03.1996 and which

appointment shall be treated as illegal and the same illegality

cannot be perpetuated in the case of the petitioner. He would

rely on the judgment of Hon'ble Supreme Court in the case of

State of Orissa and another v. Mamata Mohanty 2 for the

proposition that when negative equality comes into play, Article

14 of the Constitution of India has no application.

6. Learned counsel for the petitioner would submit that

the order of regularization of services of Smt. K.Madhavi is a law

under sub-clause (a) of Clause (3) of Article 13 of the

Constitution of India and the same principle is applicable to the

petitioner herein and not extending the same to the petitioner

which amounts to arbitrary action and would submit that the

negative equality does not arise and hence prayed to direct the

respondents herein to extend the same relief to the petitioner

which granted to Smt. K.Madhavi.

7. Under clause (3)(a) of Article 13 of the Constitution of

India, law includes any ordinance, order, bye law, rule,

(2011) 3 Supreme Court Cases 436

regulation, notification, custom or usage having any territory of

India. Under the said definition, the appointment given to Smt.

K.Madhavi cannot be construed as law and it is not enforceable

and an order given to a particular person cannot be construed as

a law. The word law is used in Article 13 of the Constitution of

India must be taken to mere rules or regulations made in

exercise of ordinary legislative power. Hence, the contention

raised by the learned counsel for the petitioner cannot be

accepted. Therefore, the appointment order which was given to

Smt. K.Madhavi had the force of law or at any rate was not law

within the meaning of Article 13 of the Constitution of India.

8. As held by the Hon'ble Supreme Court in the case of

Basawaraj and another v. Spl. Land Acquisition Officer3, it is a

settled legal proposition that Article 14 of the Constitution is not

meant to perpetuate illegality or fraud, even by extending the

wrong decisions made in other cases and the said provision does

not envisage negative equality but has only a positive aspect and

thus, if some other similarly situated persons have been granted

some relief/ benefit inadvertently or by mistake, such an order

(2013) 14 SCC 81

does not confer any legal right on others to get the same relief as

well). In view of the same, this Court is of the opinion that

though the petitioner is deprived of the equal pay for equal work,

but the law is otherwise. Therefore, this Court is not inclined to

interfere with the impugned Memo dated 13.10.2014 passed by

the respondent-authorities.

9. Accordingly, this Writ Petition is dismissed. There

shall be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 07.12.2022 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.14766 OF 2016

Date: 07.12.2022

siva