Andhra Pradesh High Court - Amravati
J Nagaratnamma vs The State Of Andhra Pradesh on 12 March, 2024
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
APHC010598232022
IN THE HIGH COURT OF ANDHRA
PRADESH
[3388]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE TWELTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
WRIT APPEAL NO: 845/2022
Between:
P Tejeswari and Others ...APPELLANT(S)
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. M/S INDUS LAW FIRM
Counsel for the Respondent(S):
1. GP FOR SERVICES I
2. K V RAGHU VEER
3. GP SERVICES III
2
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
WRIT APPEAL NO: 851/2022
Between:
The Principal Secretary and Others ...APPELLANT(S)
AND
J Nagarathnamma and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. K V RAGHU VEER
2. GP FOR SERVICES I
3. GP FOR SERVICES I
Counsel for the Respondent(S):
1. AKULA SRI KRISHNA SAI BHARGAV
2. GP FOR FINANCE PLANNING
WRIT APPEAL NO: 857/2022
Between:
The State Of Ap and Others ...APPELLANT(S)
AND
Y Hanuma Devi and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. K V RAGHU VEER
Counsel for the Respondent(S):
1. M/S INDUS LAW FIRM
2. GP FOR FINANCE PLANNING
3
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
WRIT APPEAL NO: 861/2022
Between:
The Principal Secretary and Others ...APPELLANT(S)
AND
P Tejeswari and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. K V RAGHU VEER
Counsel for the Respondent(S):
1. GUNDALA SIVA PRASADA REDDY
2. GP FOR SERVICES I
WRIT APPEAL NO: 869/2022
Between:
J Nagaratnamma and Others ...APPELLANT(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. AKULA SRI KRISHNA SAI BHARGAV
Counsel for the Respondent(S):
1. GP FOR SERVICES I
2. GP FOR SERVICES III
3. K V RAGHU VEER
4. GP FOR SERVICES I
4
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
WRIT PETITION NO: 11861/2023
Between:
Bejjam Bhagya Latha and Others ...PETITIONER(S)
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. GUNDALA SIVA PRASADA REDDY
Counsel for the Respondent(S):
1 GP FOR SERVICES III
.
2 REVANURU SUDHA RANI (SC FOR SAMAGRA SHIKSHA)
.
5
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether Their Lordships wish to Yes/No
see the fair copy of the Judgment?
________________________
U.DURGA PRASAD RAO, J
________________________
Dr. V.R.K.KRUPA SAGAR, J
6
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
* HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
+ WRIT APPEAL No.845 OF 2022
% 12.03.2024
# Between:
P Tejeswari and Others ...APPELLANT(S)
AND
The State Of Ap and Others ...RESPONDENT(S)
! Counsel for the Appellant(s) : Sri N.V.Sumanth
^ Counsel for Respondent(s) : Sri K.V.Raghuveer, learned standing
counsel for Samagra Shiksha
7
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
+ WRIT APPEAL No.851 OF 2022
% 12.03.2024
# Between:
The Principal Secretary and Others ...APPELLANT(S)
AND
...RESPONDENT(S)
J Nagarathnamma and Others
! Counsel for the Appellant(s) : Sri K.V.Raghuveer, learnedstanding
counsel for Samagra Shiksha
^ Counsel for Respondent(s): Sri N.V.Sumanth
8
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
+ WRIT APPEAL No.857 OF 2022
% 12.03.2024
# Between:
The State Of Ap and Others ...APPELLANT(S)
AND
Y Hanuma Devi and Others ...RESPONDENT(S)
! Counsel for the Appellant(s) : Sri K.V.Raghuveer, learned standing
counsel for Samagra Shiksha
^ Counsel for Respondents : Sri N.V.Sumanth
9
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
+ WRIT APPEAL No.861 OF 2022
% 12.03.2024
# Between:
The Principal Secretary and Others ....APPELLANT(S)
AND
P Tejeswari and Others ...RESPONDENT(S)
! Counsel for the Appellant(s) : Sri K.V.Raghuveer, learned
standing counsel for Samagra Shiksha
^ Counsel for Respondents : Sri N.V.Sumanth
10
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
+ WRIT APPEAL No.869 OF 2022
% 12.03.2024
# Between:
J Nagaratnamma and Others ...APPELLANT(S)
AND
The State Of Andhra Pradesh and ...RESPONDENT(S)
Others
! Counsel for the Appellant(s): Sri N.V.Sumanth
^ Counsel for Respondent(s) : Sri K.V.Raghuveer, learned standing
counsel for Samagra Shiksha
11
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
+ WRIT PETITION No.11861 OF 2023
% 12.03.2024
# Between:
Bejjam Bhagya Latha and Others ...PETITIONER(S)
AND
The State Of Ap and Others ...RESPONDENT(S)
! Counsel for the Petitioner(s) : Sri N.V.Sumanth
^ Counsel for Respondent(s) : Sri K.V.Raghuveer, learned standing
counsel for Samagra Shiksha
12
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
< Gist:
> Head Note:
? Cases referred:
1. AIR 1960 SC 650
2. 2003 (3) L.L.N 648
3. 1994 - 1 L.L.N 485
4. (2009) 2 SCC 592
5. (2014) 1 SCC 351
6. (2013) 11 SCC 162 (Para 12)
7. (2008) 13 SCC 1 (Para 7)
8. 2001 (4) ALD 852 (AP)
9. 2023 SCC Online Ker 58
10. 2021 SCC Online AP 340
11. (2017) 1 SCC 148
12. AIR 1958 SC 36
13. 1987 Lawsuit (SC) 768
14. 2022 SCC Online Jhar 1586
The Court made the following Judgment:
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UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
WRIT APPEAL Nos.845, 851, 857, 861 and 869 of 2022
and
WRIT PETITION No.11861 of 2023
COMMON JUDGMENT: (Per Hon'ble Justice Dr. V.R.K.Krupa Sagar)
The present group of Writ Appeals and the Writ Petition
hold same set of facts and law and therefore, they are argued
together and are to be considered together.
2. Principals, Contract Residential Teachers (CRT), Physical
Education Teachers (PET) working in Kasturba Gandhi Balika
Vidyalaya (KGBV) at different places in the State raised
grievance concerning transfers and Minimum of Time Scale Pay
(MTS). Questioning their transfers without extending Minimum
of Time Scale of Pay in revised pay scales, 2022, they had filed
W.P.No.26030 of 2022, W.P.No.27799 of 2022 and
W.P.No.23060 of 2022. A learned Single Judge of this Court
had considered all the writ petitions and by a common order
dated 27.09.2022 directed respondents therein to pay Minimum
of Time Scale of pay in the revised pay scales of 2022 along with
arrears to all the writ petitioners within a period of six weeks.
With reference to transfers, to the extent of writ petitioners, they
were directed to be retained at the places where they have been
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W.A.No.845 of 2022 & batch
working prior to the filing of the writ petitions. Orders of
transfer were not set aside on the premise that the orders of
transfer were implemented and those who already joined in
other stations were not parties in the writ petitions and
therefore, it was found not proper to disturb the transfer
proceedings.
3. Both parties to the writ petitions were aggrieved of those
orders. Writ petitioners in W.P.No.26030 of 2022 filed
W.A.No.845 of 2022 wherein they sought for setting aside of
transfer orders. Respondents in W.P.No.26030 of 2022 filed
W.A.No.861 of 2022 seeking to set aside the impugned orders
concerning MTS and transfers. Similarly writ petitioners in
W.P.No.27799 of 2022 preferred W.A.No.869 of 2022. Whereas,
the respondents in that writ petition preferred W.A.No.851 of
2022. Further, the respondents in W.P.No.23060 of 2022
preferred W.A.No.857 of 2022.
4. Similarly placed teaching staff filed W.P.No.11861 of 2023
wherein they questioned the transfer orders alone.
5. Sri K.V.Raghuveer, the learned Standing Counsel for
Samagra Shiksha appearing for all the respondents in the writ
petitions and for all appellants in Writ Appeals preferred by
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W.A.No.845 of 2022 & batch
them and M/s. Indus Law firm represented by
Sri N.V.Sumanth, learned counsel for writ petitioners and the
respective appellants in their appeals argued their respective
contentions.
6. The Government of India, Ministry of Human Resource
Development, New Delhi have introduced a Scheme called
Kasturba Gandhi Balika Vidyalaya (KGBV) to provide
elementary education to girls in Educationally Backward
Blocks. For implementation of the objectives of the KGBV
Scheme, residential schools for girls called KGBV have been
established in the State of Andhra Pradesh and "Andhra
Pradesh KGBV Society" has been constituted as an autonomous
body in October 2011 under the Societies Act, 2001 vide
Registration No.491/2011 on 14.10.2011. The Society was
initially being run under the aegis of Rajiv Vidya Mission and
later under Samagra Shiksha. In order to achieve the above
objectives, the KGBV Society issued employment notification
dated 11.09.2013 calling for suitable candidates for the posts of
Principals, Contract Residential Teachers (CRT), Physical
Education Teachers (PET) etc., on tenure basis on a
consolidated pay. Accordingly, writ petitioners were selected
and appointed against their respective posts as Principals,
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W.A.No.845 of 2022 & batch
Contract Residential Teachers (CRT), Physical Education
Teachers (PET). The writ petitioners were appointed in their
respective posts on 12.12.2013 on a contract tenure of one year.
The petitioners on appointment entered into a Contract of
Employment for a duration of 11 months or till the last day of
April whichever is earlier. On completion of the said period, the
contract of employment was terminated en masse and they were
re-engaged with effect from 2nd day of May and this process is
repeated every year. Writ petitioners have put in almost 9 years
of service.
7. While things stood thus, the Government of Andhra
Pradesh considering various representations received from
contract employees working in various Government
Departments were pleased to constitute a Committee of Group
of Ministers to review the existing system of contractual
employment and make necessary recommendations vide
G.O.Rt.No.3080, General Administration (Cabinet) Department
dated 09.09.2014. After due deliberations, the Committee of
Ministers had resolved for extension of Minimum of Time Scale
to the contract employees working in various Government
Departments in the revised pay scales of 2015 vide Council of
Ministers Resolution C.R.No.77-10/2019, dated 21.01.2019.
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W.A.No.845 of 2022 & batch
Accordingly, Government of Andhra Pradesh issued
G.O.Ms.No.12 Finance (HR.I-Plg. & Policy) Department, dated
28.01.2019 wherein orders have been issued for extension of
Minimum of Time Scale to the contract employees working in
various Government Departments in revised pay scales of 2015.
8. The Council of Ministers vide a separate resolution in
C.R.No.201-16/2019 dated 08.02.2019 resolved for extension of
Minimum of Time Scale to the contract employees of
Universities, Societies, KGBV and Model Schools in revised pay
scales, 2015. Accordingly, the Government vide G.O.Ms.No.24
dated 18.02.2019 ordered extension of Minimum of Time Scale
to the contract employees of Universities, Societies, KGBV and
Model Schools in revised pay scales, 2015, in which the
employees are working on par with the contract employees
covered in the G.O.Ms.No.12, Finance (HR.I-Plg. & Policy)
Department dated 28.10.2019, subject to adhering the
guidelines stipulated therein with effect from 01.04.2019.
9. Further, the Government of Andhra Pradesh vide
G.O.Ms.No.40 dated 18.06.2021 had issued comprehensive
orders regarding the remuneration and other benefits to be paid
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W.A.No.845 of 2022 & batch
to the persons who have been appointed on contract
appointment.
10. Writ petitioners state that despite their requests, the
benefit of MTS that was granted, has not been implemented.
While they are only contract employees and are not liable for
transfers, they are ordered to be transferred and G.O.Rt.No.103
dated 29.06.2022 was issued and implemented. Without
extending MTS they shall not be transferred.
11. Grounds raised in the counters filed in the writ petitions:
That the writ petitioners were engaged on contract basis
with a consolidated pay. Their posts are in KGBV and not
under Government management. There are at present 352
Principals and 3489 Contract Residential Teachers and 352
Physical Education Teachers at various places in KGBV in the
State. They were not engaged against vacant sanctioned posts
and were not engaged by Government Orders with finance
concurrence. G.O.Ms.No.12, dated 28.01.2019, G.O.Ms.No.24,
dated 18.02.2019, G.O.Ms.No.40 dated 18.06.2021 provided for
implementation of Minimum of Time Scale to all the contract
employees working in KGBV, Universities, Societies and Model
Schools but that could be extended only to those who were
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W.A.No.845 of 2022 & batch
engaged against vacant sanctioned posts and not to others.
Since the petitioners were not engaged against vacant
sanctioned posts, they are not eligible to stake their claims for
extension of Minimum of Time Scale pay.
12. In fact the Government in Memo No.ESE01-SED
NOSPD/27/2020-2, dated 29.07.2021 clarified stating that the
contract employees working in KGBV are appointed without
concurrence of Finance Department, the honorarium and other
allowances are being paid as per the approval provision in the
Annual Work Plan and Budget by the Government of India and
the contract employees of KGBV are not eligible for Minimum of
Time Scale and revised pay scales as they have not fulfilled
conditions governing the sanction as contained in
G.O.Ms.No.24, dated 18.02.2019 and G.O.Ms.No.12, dated
28.01.2019. However, since G.O.Ms.No.5, dated 17.01.2022
was issued extending Minimum of Time Scale to contract
employees in KGBV, the State Project Director, Samagra
Shiksha sought clarification from the Finance Department of
the Government of Andhra Pradesh and the same is awaited.
13. With reference to transfers, it is stated that the writ
petitioners and such other teachers have been working for
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W.A.No.845 of 2022 & batch
about 10 to 15 years and that presented several issues among
staff leading to disruption of smooth functioning of KGBV and
there were also representations from the teaching staff and from
public representatives and unions seeking for affecting request
transfers on spouse grounds, medical grounds etc. It was in
that regard a decision was taken by the Government for
affecting transfers to the teaching staff in KGBV. Therefore,
G.O.Rt.No.103 School Education (Prog-II) Department dated
29.06.2022 was issued for effecting transfers providing various
guidelines and online transfers were taken up after addressing
all the grievances by District Level Committees. Many of the
petitioners applied for the transfers by exercising their options
and transfer orders were issued accordingly and they were
relieved from the places where they have been working and they
joined in the new stations allotted to them. That, the writ
petitions were filed with ulterior motives to stop the process of
transfers. The process of transfers has been taken up at
District Level with the approval of the District Collector on note
file and based on the orders, the department concerned have
issued orders on behalf of the District Collector. There is no
justification for the petitioners to claim Minimum of Time Scale
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W.A.No.845 of 2022 & batch
Pay since they are not even on salary and they are paid only
honorarium. They sought dismissal of the writ petition.
14. The following points fall for consideration before us: -
1. Whether contractual teachers in KGBV are arbitrarily
deprived of MTS in Revised Pay Scales, 2022?
2. Whether contractual teachers in KGBV are not liable
for transfers and whether they could be transferred
only on extending the benefit of MTS in Revised Pay
Scales, 2022?
15. At the outset, it is to be made clear that extension of MTS
and transfers are two different subjects and in the given facts
and circumstances of the rival contentions they are not
interlinked. Considering the nature of the controversy, we are
inclined to consider the aspect of transfers first and thereafter,
the aspect of Minimum of Time Scale.
Transfers:
The triggering factor for the teaching staff to file writ
petitions is transfers. G.O.Rt.No.103, School Education (Prog-II)
Department, dated 29.06.2022 was issued by the Government
of Andhra Pradesh providing guidelines for online transfer of
teaching staff working in KGBV for the year 2022-2023. By
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W.A.No.845 of 2022 & batch
virtue of this G.O., District Level Committees were constituted
consisting of
District Collector or his nominee as Chairman
District Education Officer and Ex-officio Project
Coordinator as Member,
Additional Project Coordinator, Samagra Shiksha as
Member Convener
Principal, DIET as Member.
This committee was to prepare seniority list with
entitlement points and shall publish the same on website and
on the notice boards at relevant places. It also provided
guidelines for online applications and the process to be adopted
for counselling. The objections and grievances were permitted
to be lodged and they were to be considered and the competent
authority mentioned therein shall dispose them off. It further
mentions that the District Level Committee shall take the final
decision of transfers and the District Collector and Chairman,
Samagra Shiksha shall be the competent authority for issuance
of transfer orders based on the final outcomes.
16. While, this process of transfers were under
implementation, the writ petitions came to be filed questioning
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W.A.No.845 of 2022 & batch
G.O.Rt.No.103, dated 29.06.2022. The principal contention
raised on behalf of the writ petitioners in W.P.Nos.27799, 26030
and 23060 of 2022 is that the teaching staff in KGBV are
contractual employees appointed on tenure basis terminable by
the end of each year and they are not cadre based employees
and their contract of appointment inhibited them from seeking
transfers. While permanent employees under transfer would get
their transfer allowances and they also get Dearness Allowance,
House Rent Allowance etc., these contractual employees whose
salary is very low are not provided with all attendant benefits
from the inception of their employment in the year 2013 and
transfers were never effected and now under the impugned G.O.
the transfers are taken up. While the Government was
successively issuing Government Orders in G.O.Ms.No.24,
Finance (HR.I-Plg. & Policy) Department, dated 18.02.2019,
G.O.Ms.No.40, Finance (HR.I-Plg. & Policy) Department, dated
18.06.2021 and G.O.Ms.No.5, Finance (HR.I-Plg. & Policy)
Department, dated 17.01.2022 to extend the Minimum of Time
Scale pay to these teaching staff of KGBV, the authorities
concerned did not extend such Minimum of Time Scale and yet
it has resorted to transfer all these contractual employees and
therefore, G.O.Rt.No.103 dated 29.06.2022 is arbitrary, illegal
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W.A.No.845 of 2022 & batch
and violative of Articles 14 and 21 of the Constitution of India
and it is also violative of terms of contract of employment and
therefore, the impugned G.O. shall be set aside.
17. As against this, the contention raised on behalf of the
respondents in the writ petitionsis that these teaching staff of
KGBV have been working at the same stations for about 10 to
15 years and that resulted in several issues among the staff and
that spoiled the school environment and hindered the smooth
functioning of KGBV. In fact newspapers published certain
adverse items against the staff members. Some of the teaching
staff submitted representations by themselves or through public
representatives and other unions making requests for transfer
citing various reasons such as spouse grounds, medical
grounds and health of parents and children. All that impelled
the Government to take a decision for effecting transfer of
teaching staff in KGBV. Transparent process was taken up by
virtue of the impugned G.O.Rt.No.103, dated 29.06.2022 and
applications for transfers were received and various objections
and grievances were received and they were all resolved and a
seniority list was prepared and the same was displayed and
thereafter, transfers were effected and therefore, there is no
merit in the contentions raised by the writ petitioners.
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W.A.No.845 of 2022 & batch
18. Learned Single Judge did not find need to test the legality
of the impugned G.O. and granted a relief to the writ petitioners
with a direction to the Government to retain the writ petitioners
in their respective stations where they were working by the time
of filing the writ petitions and stated that the transfers were
already effected and many of the teaching staff joined their new
stations and therefore, disturbing them without they being
parties to the proceedings was incorrect. Questioning that part
of the order the writ appeals have been filed wherein the
contentions are reiterated on both sides.
19. Precedent is cited at the bar in support of their respective
contentions.
1. Kundan Sugar Mills V. Ziyauddin 1.
2. Priscy D'Souza V. Indamer Company (Private),
Ltd.2Bombay High Court.
3. Susmriti Das V. Basumati Corporation3Calcutta
High Court.
20. In all those cases, the question that was considered was
with reference to transfer of employees appointed on contract
1
AIR 1960 SC 650
2
2003 (3) L.L.N. 648
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W.A.No.845 of 2022 & batch
basis. It was held that in cases of contractual employees the
terms of the contract bind the employer and the employee and
transfer is governed by those terms. If the terms of contract
provide a clause of transfer then the employer can transfer the
employees. If the contract does not have a term of transfer, it
was not within the competence of the employer to transfer the
employee.
21. For Government, Somesh Tivari v. Union of India4 is
cited for the principle - the transfer is an administrative order
and transfer is ordinarily an incident of service and the Court
should not interfere with it except in cases where mala fides on
the part of the authority are established.
22. A proforma of contract of employment of the year 2013 is
placed on record in W.P.No.26030 of 2022. As per term No.4,
contractual employees shall not be considered as regular staff
and they are not entitled to apply for transfer from the place
where they are appointed. It is based on this term, the claim of
the writ petitioners hinged. However, one needs to consider
term No.2 also. This term provides for the place of work on
appointment and further reads - "employee will work at,
3
1994 - 1 L.L.N 485
4
(2009) 2 SCC 592
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W.A.No.845 of 2022 & batch
and travel to, such locations as may be necessary for the
proper discharge and fulfillment of the services". The latest
proforma of the contract is made available in W.A.No.857 of
2022 and this pertains to the latest period of May, 2022. In this
term No.2 is similar to the term mentioned as above. What was
mentioned in term No.4 in the earlier agreement finds complete
omission in the new format of contract of the year 2022.
23. Thus, on considering the terms of contract of
employment, one would notice that the employer was
empowered to direct the employee to work at a place other than
the place of his appointment and the employee can be directed
to travel to such other locations and work there. That in effect
is what transfer is meant by. Thus, by the terms of contract the
contracting employer has always been empowered and entitled
to effect transfers. The initial standard format of the contract of
the year 2013 specifically inhibited the contractual employee
from seeking a transfer. In the latest of the standard format of
the contract of the year 2022 that disability is removed to the
employees. The contracting employer is now inclined to receive
request transfers from contracting employee also. As the
precedent indicated, the transfer in a case of contractual
employment is governed by the terms of the contract and since
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UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
the format of contract in the case at hand indicate the right of
the employer to effect transfers, the challenge laid in the writ
appeals filed by the teaching staff in questioning the transfer
guidelines on the basis of terms of contract is ineffective as the
contract of employment permits the employer to effect transfers.
Therefore, the impugned G.O., in our considered view, is in tune
with terms of contract of employment.
24. In all the three writ petitions that were decided by the
learned Single Judge, the affidavits filed in support of the
respective writ petitions at paragraph No.12 is relevant for
consideration which reads:
"Thus, even the writ petitioners are not averse to
transfers and they questioned the legitimacy of
transfers on the ground that they are not provided with
Minimum of Time Scale."
25. Learned counsel for appellants/writ petitioners in
W.A.No.845 of 2022 and W.A.No.869 of 2022 also argued that
the teaching staff could be transferred provided Minimum of
Time Scale is given to them. The question of eligibility or
otherwise for Minimum of Time Scale of Pay would be dealt with
a little latter by us. The contention is that unless and until
Minimum of Time Scale Pay is given they shall not be
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W.A.No.845 of 2022 & batch
transferred. This is an argument which has no legal basis on
facts and therefore we cannot agree with such contention. The
need and necessity and virtue of transfer orders are not the
subject matter and no arguments are made in questioning
them. No mala fides are alleged in the decision to transfer the
teaching staff. Therefore, even that aspect has not fallen for
decision. Since the facts on record clearly indicate as to what
impelled the Government to take up the task of transferring
contractual teaching staff and as the terms of the contract of
employment permit the employer to effect transfer of teaching
staff of KGBV, we are of the considered opinion that there is no
merit in these writ appeals which have challenged the vires of
G.O.Rt.No.103, dated 29.06.2022. We uphold the transfers for
the contractual teaching staff of KGBV. The orders of the
learned Single Judge directing the Government to retain the writ
petitioners at their respective stations where they were working
by the time of filing these writ petitions, cannot in the light of
the view we have taken, be sustained.
26. This takes us to W.P.No.11861 of 2023, wherein the
prayer is to set aside the transfer orders. However, this
challenge is laid on the premise that while the impugned
G.O.Rt.No.103, dated 29.06.2022 permits the District Collector
30
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
and Chairman to issue transfer orders, the transfer orders to
the writ petitioners were issued by District Education Officer
and that is invalid. In all the appeals filed by the teaching staff
as well as in this writ petition the learned counsel appearing for
them argued that when the statute vested the power with an
authority it is the same authority which had to exercise that
power and in the absence of power of delegation on part of that
authority, the said authority could not delegate the power
vested with him to a lower authority. In other words, the
learned counsel argued the doctrine of delegatus non potest
delegare. Learned counsel cited Union of India V. B.V.
Gopinath5 in support of the principle argued.
27. As against it, the learned Standing Counsel for Samagra
Shiksha argued that these teaching staff already participated in
the transfer counseling process and exercised their web options
and at this juncture they cannot be permitted to contend
otherwise. The order of the learned Single Judge in allowing
only the writ petitioners to continue in the stations where they
have been working while allowing already transferred employees
to work at their new stations resulted in several difficulties
which include hindrance to effect the remaining parts of the
5
(2014) 1 SCC 351
31
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W.A.No.845 of 2022 & batch
transfer of those employees who opted for those stations where
the writ petitioners have been now working. In other words,
learned counsel contends that the benefit conferred on the writ
petitioners resulted in complete deprivation of opportunity to
the effected employee who opted for such stations.
28. Learned Standing Counsel further contended, making
reference to counter affidavits filed in the writ petitions, to the
effect that the District Education Officer merely issued the
orders in terms of the decisions taken by the District Level
Committee constituted under G.O.Rt.No.103, dated 29.06.2022
and after obtaining the orders of the District Collector on note
file. Thus, the submission is to the effect that decision of
transfers was taken by the District Level Committee and the list
of transfers kept by way of a note file was approved by the
District Collector and since the matter pertains to education the
District Education Officer merely signed the orders and served
them on the transferred employees which is a concomitant act
and therefore there was no unlawful delegation and the orders
of transfer are valid.
29. Thus, the controversy boils down to one fact, namely,
whether the orders of transfer are to be signed in each case by
32
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
the District Collector? While no one disputes the doctrine of
delegatus non potest delegare, when it comes to invoking it the
ratio laid down by the Hon'ble Supreme Court of India in the
above cited Union of India V. B.V. Gopinath(supra 5) has to be
noticed. Their Lordships held that a discretionary power, must,
in general, be exercised only by the authority to which it has
been committed. When a power has been confided to a person
in circumstances indicating that trust is being placed in his
individual judgment and discretion, he must exercise that
power personally unless he has been expressly empowered to
delegate it to another. The principle is strictly applied, even
where it causes administrative inconvenience, except in cases
where it may reasonably be inferred that the power was
intended to be delegable.
30. Tested on the said ratio, it is clear that in the case at
hand, the authority to consider and take a decision about
transfers is vested with the District Level Committee. In
G.O.Rt.No.103 dated 29.06.2022 at Para No. IV it is mentioned
that transfer orders shall be issued by the District Level
Committee constituted for this purpose in each district. We have
already mentioned the composition of this committee. It is not
in dispute that it is only that committee that took decision of
33
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W.A.No.845 of 2022 & batch
transfers of all those applicants who applied for transfers.
Thus, the authority which was vested with the power to take
decision is not really in controversy here. What there remained
is issuance of transfer orders. On the note file, it is stated that
the District Collector had endorsed his approval for the transfer
list. That is also not disputed. Once District Collector did that,
he discharged his essential functions. Mere issuance of orders
in terms of the decisions already taken was taken up by District
Education Officer who was also one of the Members of the
committee. One could not see from the impugned G.O any
aspect of Government placing any trust in the individual
Judgment of the District Collector in considering the transfers.
Therefore, there is no occasion to say that he had delegated any
of his powers. It is not the case of teaching staff that the District
Education Officer signed the orders without the approval of the
committee or the District Collector. In signing the transfer
order there was no particular trust to be placed or individual
judgment or discretion to be exercised since that part of the
duties were already discharged by the District Collector being
the Chairman of the District Level Committee and by signing on
the note file in the office. Therefore, when a lower level officer
such as District Education Officer signed and dispatched the
34
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W.A.No.845 of 2022 & batch
transfer orders, the same cannot be considered as violation of
the principle delegatus non potest delegare. Therefore, the
contentions raised questioning the transfer orders are found to
be without merit.
31. In the light of the above we hold that contractual teaching
staff of KGBV are amenable for transfers and G.O.Rt. No.103
dated 29.06.2022 is valid and transfers taken up in pursuance
of it are valid and those transfers shall be effected fully. Hence,
this point is answered accordingly.
Remuneration:
32. The employment is contractual and temporary in nature.
From the rival contentions, it is clear that the teaching staff
have not been asking for regularization of their services or
absorption. They have been only contending that the
Government having in principle accepted and ordered for
Minimum of Time Scale respondents failed to extend the benefit
to them and therefore they pray for its implementation.
33. That in KGBV there are no sanctioned posts of teaching
staff. Thus, the appointments are not against sanctioned
vacancies.
35
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W.A.No.845 of 2022 & batch
34. It is in the light of such admitted position, the rival
contentions are required to be analysed: -
The principal contention of Samagra Shiksha is that as
these teachers are not appointed as against sanctioned
vacancies, they cannot ask for Minimum of Time Scale. In this
regard we have to notice that Council of Ministers Resolution
C.R.No. 77-10/2019 dated 21.01.2019 resolved for extension of
Minimum of Time Scale to the contract employees working in
various departments in the revised pay scale 2015 with the
effect from 01.04.2019 vide G.O.Ms.No.12 dated 28.01.2019
issued by Government of Andhra Pradesh, Finance (HR.I - Plg.
& Policy) Department. Thereafter, came G.O.Ms.No.24 dated
18.02.2019 of Government of Andhra Pradesh Finance (HR.I -
Plg. & Policy) Department granting Minimum of Time Scale to
the contract employees of KGBV, Universities, Societies, Model
Schoolsin the revised pay scales 2015 with effect from
01.04.2019. It makes reference to, inter-alia, G.O.Ms.No.12
dated 28.01.2019 and states that this extension of Minimum of
Time Scale is to the employees who are working on par with the
contract employees covered in G.O.Ms.No.12 and the guidelines
stipulated therein shall be adhere to. Then came G.O.Ms.No.40
36
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
dated 18.06.2021 issued by the Government of Andhra Pradesh
Finance (HR.I - Plg. & Policy) Department. That reads as below:
"GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Finance Department - Contract Employment - Remuneration & Other
Benefits1
Comprehensive orders - Issued.
------------------------------------------------------------------------------------------------------------
FINANCE (HR-I Plg. & Policy) DEPARTMENT
G.O.MS.No . 40 Dated: 18-06-2021
Read the following:
1. G.O.Ms.No.94, General Administration (Ser.A) Department,
Dt.28.03.2003.
2. G.O.Ms.No.12, Finance (HR.I-Plg. & Policy) Department, Dt.28-01-
2019.
3. G.O.Ms.No.24, Finance (HR.I-Plg. & Policy) Department, Dt.18-02-
2019.
4. G.O.Ms.No.17, Finance (HR.I-Plg & Policy) Department,
Dt.31.01.2019.
5. G.O.Ms.No.25, Finance (HR.I-Plg & Policy) Department,
Dt.18.02.2019.
***
ORDER :
Human resources are critical for the grounding & execution of the
manifold schemes of the Government & for translating ideas & plans into
tangible results. An efficient system & planned calendar for recruitment is
sine qua non for the on boarding & deployment of qualified workforce &
ensuring their availability to the various Departments. The Government is
currently taking significant steps in this direction and for the streamlining
of the existing system.
2. However, in the past, due to the lack of adequate focus & planning in
the recruitment and deployment of qualified personnel, to meet demand
for augmenting the professional workforce, the Government has issued the
orders in G.O. 1st read above, introducing the system of contract
employment. Several successive recruitments have been made by various
Departments to meet the requirement of the workload using the newly
introduced contractual system & it is observed that the recruitments have
been made both in conformity & in deviation with the procedure
governing contract employment.
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
3. The Government have examined the terms and conditions of the
persons who have been engaged by method of contractual employment in
the past & it is observed that the remuneration and the other benefits
provided are governed by the following orders.
I. G.O.Ms.No.12, Finance (HR.I-Plg. & Policy) Department, dated
28-01-2019: In this G.O. orders were issued providing the
Minimum of Time Scale to contract employees working in
Government Departments in the Revised Pay Scales, 2015. This
order is with effect from 01.04.2019.
II. G.O.Ms.No.24, Finance (HR.I-Plg. & Policy) Department,
dated 18-02-2019: In this G.O. orders were issued providing the
Minimum of Time Scale to the contract employees working in
Universities, Societies, KGBV and Model Schools in the Revised
Pay Scales, 2015. This order is with effect from 01.04.2019.
III. G.O.Ms.No.17, Finance (HR.I-Plg & Policy) Department,
dated 31.01.2019: In this G.O. orders were issued sanctioning 180
days of paid maternity leave to the married women contract or
outsourcing employees for their first two deliveries. This order is
with effect from 01.04.2019.
IV. G.O.Ms.No.25, Finance (HR.I-Plg & Policy) Department,
dated 18.02.2019: In this G.O. orders were issued sanctioning an
ex-gratia of Rs.5,00,000/- (Rupees Five Lakhs only) for accidental
death & Rs.2,00,000/- (Rupees Two Lakhs only) in case of natural
death, to the legal heir of the deceased contract or outsourcing
employee. This order is with effect from 01.04.2019.
4. The orders mentioned above, extending the various benefits to the
contract employees, were issued on various dates in the months of January
& February of 2019. However, the effective date for the implementation is
w.e.f. 1-4-2019 in all the orders.
5. The estimated additional outgo resulting from the implementation of
the above orders, amounting to approximately Rs 30.4 crore (Rupees
Thirty crores and forty lakhs) per month and Rs 365 crore (Rupees Three
Hundred & Sixty-Five crore) on an annual basis, has occurred only
subsequent to 01-04-2019.
6. It is also observed that the mentioning of the eligible remuneration &
the other benefits to the contract employees in different G.O.s is giving rise
to ambiguity and lack of clarity among the employees, the drawing &
disbursing officers and the audit authorities & is causing unnecessary delay
& in some cases deprivation of the intended benefits.
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
7. Government after careful consideration of the entire matter & keeping
the welfare of the contract employees in perspective, have decided to issue
the following comprehensive orders, in supersession of all the orders
issued earlier, regarding the remuneration & other benefits to be paid to
the persons who have been appointed on contract appointment in terms of
the instructions issued in the G.O. 1st cited, and as mentioned hereunder:
A. Payment of Minimum of Time Scale(MTS) in Revised Pay Scales
2015 to the Contractual employees engaged in the Government
Departments, Universities, Societies, KGBV and Model Schools: The
Minimum of Time Scale (MTS) shall be paid to the contractual employees
working in various Government Departments, Universities, Societies,
KGBV and Model Schools in the Revised Pay Scales, 2015 of the relevant
posts, in which the employees are working. The remuneration (Minimum
of Time Scale in RPS 2015) to the contractual employees shall be
governed by the following conditions:
a) The remuneration extended shall form an all-inclusive
consolidated monthly payment for all purposes.
b) No other allowances shall be paid.
c) No other increase in any form like annual grade increments, etc.,
shall be admissible on the above consolidated monthly
remuneration equivalent to the Minimum of Time Scale in RPS,
2015.
d) The extension of Minimum of Time Scale is applicable to
those contractual employees who have been appointed against
vacant sanctioned posts and for those who have been appointed
by the specific Government orders have been issued with the
concurrence of Government in Finance department.
e) No further recruitment shall be made on contractual basis
without prior approval of the Government in Finance Department.
For any appointment in deviation, disciplinary proceedings shall be
initiated against the appointing authorities and severe penalties
under A.P. C.C.A. Rules, 1991, will be initiated and the
appointments made irregularly shall be cancelled. The salary bills
of such irregular appointees shall not be admitted in the audit.
f) The departments shall pay utmost attention to the conditions as
referred to above, while extending the remuneration (Minimum of
Time Scale in RPS 2015) to the personnel working on contractual
basis under their administrative control.
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W.A.No.845 of 2022 & batch
g) These orders shall not apply to the Consultants/Advisors/ OSDs
and those appointed on specific consolidated pay, working on
contractual basis in Government Departments.
h) These orders shall not apply to the employees working on
outsourcing basis.
B. Maternity Leave for women employees engaged on contractual basis:
Married women employees engaged on contractual basis in Government
Departments, Universities, Societies, KGBV and Model Schools shall be
eligible for 180 days of paid maternity leave for the first two child births.
This condition is relaxed in cases of employees having less than two
surviving children. The paid maternity leave benefit shall be equivalent to
the existing remuneration drawn by the above women employees.
The statutory benefits such as EPF & ESI and other recoveries wherever
applicable, shall also be admissible by treating them as being "on duty".
C. Sanction of Ex-gratia to the contract employees: Ex-gratia of Rs.5.00
lakhs (Rupees five lakhs only) shall be provided for accidental death and
Rs.2.00 lakhs (Rupees two lakhs only) for natural death to the legal heir of
the deceased Contract employees, who die in harness, while in service,
duly following the following procedure.
a) The application seeking ex-gratia shall be submitted by the Legal
heir of the concerned deceased Contract employees with in a period
of three (3) months from the date of demise to the unit/head of the
office concerned.
b) After receipt of the application for sanction of Ex-gratia from the
Legal heir,the Administrative Officer/Drawing and Disbursing
Officer concerned has to conduct personal enquiry in the matter
within fifteen (15) days and confirm the death.
c) The A.O./D.D.O., after thorough enquiry shall submit report to
the unit/head of the office, confirming the death and recommends
for sanction of Ex-gratia.
d) After receipt of the enquiry report, the Unit/Head of the Office
may sanction the Ex-gratia of Rs.5.00 lakhs in cases of accidental
death and Rs.2.00 lakhs in case of natural death, as the case may
be.
8. All the Secretariat Departments & the Heads of Departments shall take
further necessary action in the matter accordingly.
9. The order is available online and can be accessed at
http://www.goir.ap.gov.in
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA
PRADESH)
SHAMSHER SINGH RAWAT
PRINCIPAL FINANCE SECRETARY"
35. The first point to be observed is: -
From the time of G.O.Ms.No.40 as per para 7A(e), the
appointments on contractual basis without prior approval of the
Government in Finance Department shall not be made. At this
juncture, it is relevant to notice, the State Project Director,
Samagra Shiksha, Andhra Pradesh, Amaravati issued
proceedings in Rc.No.SS/42/2021-ADMIN-SSA dated
29.04.2022 directing all the additional project coordinators to
issue proceedings to terminate the contractual service of
contract employees on the afternoon of 29.04.2022. That was
implemented. Then came, on the very next day, the proceedings
issued by the State Project Director in Rc.No.SS/42/2021-
ADMIN-SSA-1 dated 30.04.2022 directing the authorities to
re-engages the services of contract employees on and from
02.05.2022 on contract basis. Accordingly, the teaching staff
were re-engaged on execution of fresh contracts. The standard
form of such contract is also placed on record in Writ Appeal
No.857 of 2022. It is important to notice that G.O.Ms.No.40
dated 18.06.2021 came first and the fresh re-engagement and
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
fresh contract of services came much thereafter on 02.05.2022.
The implication is that the contractual services shall be taken to
have been only in terms of G.O.Ms.No.40 dated 18.06.2021 with
the prior approval of the Government in Finance Department.
Government now cannot contend that re-engagement of services
of teaching staff since 02.05.2022 is even now against the
principles contained in G.O.Ms.No.40 dated 18.06.2021. For all
these nearly 10 years remunerations have been paid to contract
teaching staff and that cannot be said to be without the
financial concurrence.
36. On now having engaged once again contract employees on
execution of fresh contract of employment one has to see
whether G.O.Ms.No.40 dated 18.06.2021 can be considered as
one that grants Minimum of Time Scale to KGBV. Be it noted,
under the same G.O, Minimum of Time Scale was granted to
contract employees engaged in Government Departments,
Universities, Societies and Model Schools also. It is undisputed
by both sides that for all of them Minimum of Time Scale was
applied and implemented. It is undisputed that KGBV
mentioned in this G.O.Ms.No.40 alone was kept out of
consideration and Minimum of Time Scale was not implemented
to them. The main reason for not extending that benefit to
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
employees in KGBV is Para No.7A(d) wherein it is mentioned
that the extension of Minimum of Time Scale is applicable to
those contractual employees who have been appointed against
vacant sanctioned posts and for those who have been appointed
by the specific Government orders issued with the concurrence
of Government in Finance Department. On the grounds that
employees in KGBV are not appointed against vacant
sanctioned posts, the denial of benefit is sought to be justified.
Therefore, now the question is whether that is a justifiable
ground to refuse to grant Minimum of Time Scale Pay to
employees in KGBV. We have already seen that way back in the
year 2019 under G.O.Ms.No.24 dated 18.02.2019 of the
Government of Andhra Pradesh, Finance Department granted
extension of Minimum of Time Scale to KGBV. Two years
thereafter by G.O.Ms.No.40 dated 18.06.2021 of the
Government of Andhra Pradesh, Finance (HR.I - Plg. & Policy)
Department issued in the name of the Governor of Andhra
Pradesh, it once again reiterated the extension of Minimum of
Time Scale to KGBV. The Government has full information and
knowledge about existence of contract employees and their
engagement in various institutions and the existence of
sanctioned posts in various institutions and engaging contract
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
employees as against those sanctioned posts and it is also
aware that in those institutions, it permits engagement of
contract employees as against non-sanctioned posts also.
Government is also fully aware that in KGBV so far as the
teaching staff is concerned, it has never created any regular
cadre and there are no sanctioned posts. Being fully aware of it,
it has consciously and consistently taken a decision to grant
Minimum of Time Scale to the staff working in KGBV also. This
determined desire of the Government is also emphatically
continued even in its latest G.O.Ms.No.5 dated 17.01.2022 of
Government of Andhra Pradesh, Finance (HR.I - Plg. & Policy)
Department. It reads as below:
" The Government of Andhra Pradesh have constituted
the 11th Pay Revision Commission (PRC), vide the reference
first cited, with detailed terms of reference relating to pay
and emoluments of employees and pensioners. The Pay
Revision Commission submitted that its report to the
Government on 5th October, 2020.
2. In the reference second read above, the Government
constituted a Committee of Secretaries to examine the
recommendations of the 11th PRC.
3. In the reference third read above, keeping in view the
welfare of the Contract employees, the Government have
issued comprehensive orders for payment of Minimum of
Time Scale (MTS) in Revised Pay Scales, 2015.
4. The Government, after careful examination, hereby
order for the extension of Minimum of Time Scale (MTS) in
Revised Pay Scales, 2022 w.e.f 01.01.2022 (January 2022
Pay) to the Contract employees engaged in the Government
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
Departments, Universities, Societies, KGBV and Model
Schools in the respective relevant posts in which the
employees are working.
5. All the Secretariat Departments & the Heads of
Departments shall take further necessary action in the
matter accordingly.
This G.O was also issued in the name of the
Governor of Andhra Pradesh."
By these G.Os.', the Government disclosed itself that it
considered the contract employees of KGBV which have no
sanctioned posts and it also considered Universities and
Government Departments where there are sanctioned posts and
then treated them equally and extended Minimum of Time Scale
in revised pay scales 2022 to KGBV. This determined and
pronounced policy of the Government makes it very clear to this
court that the desire and intendment of the Government is to
grant Minimum of Time Scale in Revised Pay Scales, 2022 to
contractual employees in KGBV with effect from 01.01.2022.
The condition concerning application of Minimum of Time Scale
to those who are engaged against sanctioned posts is to be
understood only as applicable to those institutions which have
got sanctioned posts and not to those institutions which have
no sanctioned posts at all from the very inception. If this is not
the meaning that could be given to this, one has to necessarily
accuse the Government that it committed mistake in giving its
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
G.Os by including employees of KGBV. On analysis, we find that
any contention that it is a mistake cannot stand to reason for
the following reasons: -
37. The counter affidavits filed on behalf of Samagra Shiksha
do indicate that on two occasions it had addressed letters to the
Government seeking clarifications as to whether teaching staff
in KGBV who are not appointed against sanctioned vacancies
can be granted Minimum of Time Scale or not. Despite such
request for clarifications, Government did not issue any
amended G.O by Order and in the name of the Governor of
Andhra Pradesh making any rectifications such as omission of
KGBV. Thus, G.O.Ms.No.40 and G.O.Ms.No.5 stand intact
un-amended till now. That itself suggests clearly that the
Government intends to grant Minimum of Time Scale for the
teaching staff in KGBV. Therefore, the argument of the learned
standing counsel based on the ground that the writ petitioners
were not appointed as against sanctioned posts and therefore
they are not entitled to claim what the Government had granted
to them is untenable as it failed to notice that the Government
considered the case of KGBV as a class by itself.
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
38. In continuation of the same line of argument, the learned
standing counsel, in this regard places faith in Memo No.
ESE01 - SEDN0SPD/27/2020-2 dated 29.07.2021 which reads
as below: -
"The attention of the State Project Director, APSS, is
invited to the reference 2nd cited, wherein she has
Informed that the KGBV Teachers Association has
submitted representation with a request to consider their
demand for implementation of Minimum of Time Scale, and
she has therefore, requested to Issue necessary
Instructions in the matter.
2. In this regard, the State Project Director, APSS, Is
informed that as per para 6 (d) of the orders Issued In
G.O.Ms.No.12, Fin. (HR.I Plg. & policy) Dept. dt.28.01.2019,
the extension of MTS is applicable to those contract
employees, who have been appointed by the specific Govt.
orders issued with the concurrence of Finance Department.
Whereas, the contract employees working in KGBV were
appointed without concurrence of the Government in
Finance Dept. as the honorarium and other allowances are
being paid as per approved provisions In the Annual Work
Plan and Budget of Government of India. Therefore, the
contract employees of KGBV are not eligible for Minimum of
Time Scale In RPS, 2015, as they have not fulfilled the
conditions governing sanction of Minimum of Time Scale in
RPS, 2015 as per the orders Issued in the G.O.Ms.No.24.
(HR.I.Plg.&Policy) Dept. dt. 18.02.2019 read with
G.O.Ms.No. 12. Finance (HR.I-Plg.&Policy) Department,
dt/28.01.2019.
3. This memo issues with the concurrence of the
Finance (HR.I-Plg. & Policy) Department, vide
U.O.No.HROPDPP (TRPO)/136/2020 (Computer
No.1167332) dt.15.03.2021."
Principal Secretary to Government"
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
39. Subsequent thereto, State Project Director, Samagra
Shiksha addressed a letter dated 24.04.2022 to the Principal
Secretary to Government, Finance Department once again
asking for clarification on the advent of issuance of G.O.Ms.No.5
dated 17.01.2022 by the very Finance Department wherein
KGBV were also included for extension of Minimum of Time
Scale Pay to contract employees in KGBV. As per the record no
further clarification came.
40. Whether these letters and clarification Memos would have
any legal difference on what is mentioned in the Government
orders issued by the Finance Department of the Government of
Andhra Pradesh in G.O.Ms.No.40 dated 18.06.2021 and
G.O.Ms.No.5 dated 17.01.2022 shall now be considered. On a
careful consideration, we are of the considered opinion that the
contentions of the learned standing counsel based on these
letters and clarification memos have absolutely no legal bearing
for the following reasons: -
41. Circulars, Memos, Instructions issued merely represent
the understanding of the statutory provisions by the authority
which issued them. They cannot abridge or enhance what is
provided in the Government orders. A memo is a
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
communication of the authority that conveys some information
and is not equivalent to a decision of the Government. In the
hierarchy of executive legislation, a memo of the Government
cannot supersede or depart from the provisions of any earlier
order. Unless an order is expressed in the name of the Governor
and is authenticated in the manner prescribed by the rules, the
same cannot be treated as an order made on behalf of the
Government. The memos have no binding effect on the courts. It
is for the courts to declare what the particular provision of the
statute says or how a Government order has to be construed.
Even a clarificatory G.O cannot by any means supersede or
over-write the terms of the main order. These well settled
principles have been laid down and followed continuously and
reference in this regard can be made to:
1. B. Rugmini Amma V. B.S. Nirmala Kumari6.
2. Commissioner of Central Excise, Bolpur V. Ratan
Melting & Wire Industries7.
3. K.V. Ramana Rao V. Government of Andhra Pradesh 8.
(2013) 11 SCC 162 (para 12)
(2008) 13 SCC 1 (Five Judges) (Para 7)
2001 (4) ALD 852 (AP)
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
4. Abilash V. State of Kerala and Siraj V. State of
Kerala9.
5. Kaluvoy Fishermen Cooperative Society V. State of
Andhra Pradesh10.
42. In the light of such principles of law, the Memo dated
29.07.2021 issued by Principal Secretary to Government which
is not in the name of the Governor or by the order of the
Governor cannot be given effect to. This memo is not equivalent
to modification of G.O.Ms.No.40 or G.O.Ms.No.5. The said
memo merely represents the view point of the learned Principal
Secretary to Government which issued the memo. Even
subsequent to this memo, G.O.Ms.No.5 dated 17.01.2022 came
and therefore this memo dated 29.07.2021 ceases to hold any
bearing whatsoever. Despite view point taken by Principal
Secretary in the memo dated 29.07.2021, when the Government
issued G.O.Ms.No.5 dated 17.01.2022, reiterating its earlier
position, the only reasonable inference one could draw is that
Government intends and desires to grant Minimum of Time
Scale in revised pay scales 2022 to the contract employees
engaged in KGBV. This latest of the Government orders makes it
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W.A.No.845 of 2022 & batch
very clear and is in tune with the view taken by us that the
clause - appointment against sanctioned vacancies is applicable
to only those institutions where such sanctioned posts are there
and that clause was and is never meant to apply to KGBV where
there are no sanctioned posts since inception. This is the only
logical interpretation that can be made out. Thus, we find
justification in the prayers of teaching staff of KGBV seeking
extension of benefit of Minimum of Time Scale.
43. Education is the most important tool for social, economic
and political transformation and a key instrument for building
an equitable society. Improvement in the status and
professional competence of teachers is the corner stone of
educational reconstruction so as to achieve goals enshrined in
National Policy on Education and the Right to Children to Free
and Compulsory Education Act, 2009. In State of PunjabV.
Jajjith Singh11, the Hon'ble Supreme Court of India held that
in a welfare state any act of paying less wages as compared to
others similarly situated constitutes act of exploitative
enslavement. In G.O.Ms.No.40 dated 18.06.2021 Government of
Andhra Pradesh, in tune with its welfare policy, stated that
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(2017) 1 SCC 148
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W.A.No.845 of 2022 & batch
having kept the welfare of the contract employees in perspective,
it has decided to issue the comprehensive orders where under it
granted Minimum of Time Scale to various contractual
employees including those who are working in KGBV.
Successive Government orders since the year 2019 in
G.O.Ms.No.24, G.O.Ms.No.40 and G.O.Ms.No.5 granted
Minimum of Time Scale to contract employees in KGBV where
there are no sanctioned posts while extending similar benefits to
other institutions such as Universities and Model Schools. The
authorities having extended the MTS to all other institutions
mentioned in the G.Os. arbitrarily excluded employees of KGBV.
The justification offered is now seen untenable under law and
therefore it is negatived. Therefore, the view taken by the
learned single Judge in ordering Minimum of Time Scale to the
writ petitioners cannot be criticized.
44. At the Bar arguments were made on the doctrine of equal
pay for equal work, pay parity, regularization of services with
reference to various categories of employees, various
organizations and precedent is cited. For instance, in
Parshotam Lal Dhingra V. Union of India 12, the prime
question that fell for consideration before their Lordships was
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
whether the protections of Article 311 are available to each of
the several categories of Government servants or not. Daily R C
Labour, P And T Deptt V. Union of India13was a case where
the issue was about daily paid casual labourers as against
regular workers and the payment of minimum pay in the pay
scale of regular workers along with Dearness Allowance (DA)
and the scheme introduced for absorption of certain categories
of casual labourers. All such aspects fell for consideration
where equal pay for equal work was one aspect that was
debated and decided.
45. In the light of the view that we have taken we are inclined
to state that the facts presented in the case at hand do not
require any consideration of these arguments concerning equal
pay for equal work and pay parity as this is not a case requiring
examination of those principles. Therefore, we do not wish to
dilate and burden this record on those arguments and
precedent cited.
46. Learned standing counsel for Sarva Shiksha places strong
reliance on Division Bench Judgment of the High Court of
Jharkhand at Ranchi in Sunil Kumar Yadav V. State of
AIR 1958 SC 36
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W.A.No.845 of 2022 & batch
Jharkhand14. That is also a case concerning Para teachers on
contract employment in Samagra Shiksha Abhiyan. The writ
petitioners sought for regularization of their services or sought
for pay scales on par with regular school assistant teachers. The
Division Bench refused to grant either of those reliefs. In the
case at hand before us, the above two questions are strangers
and therefore to that extent the ruling does not require any
exploration. However, there is one another point that fell for
consideration before the Division Bench of the Jharkhand High
Court where the question raised was whether as a last
alternative relief, those para teachers were entitled to get
Minimum of Time Scale. In conclusion, the Jharkhand High
Court declined to grant it. Before any assistance can be taken
from this ruling one has to notice the legal framework available
for Jharkhand which is enumerated at Para no.32 of the said
ruling. There in that State, Jharkhand Primary School
Teacher Appointment Rules, 2012 were passed wherein 50%
of the vacant and sanctioned posts of teachers in the regular
establishment of state Government have been reserved for para
teachers on satisfying certain conditions. One should also notice
at Para No.93, it is stated that the para teachers were taken on
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W.A.No.845 of 2022 & batch
contract on payment of Honorarium only. In the case at hand
before us, the standard form of contract for the year 2013 as
well as standard form of contract of the year 2022 used the
word "Remuneration" and not "Honorarium" (in the counters
filed, it is stated that writ petitioners are paid only Honorarium
but the same shall be held incorrect since the standard form of
contracts that are provided in the material papers, the word
used is Remuneration and not Honorarium). That is another
distinguishing feature. What influenced the reasoning of the
Hon'ble Jharkhand High Court consists of the above referred
points as well as what is mentioned in the Para Nos.86 and 87
to the effect that the writ petitioners were not on a specific
prayer but they were praying for one or other reliefs. It is in
such circumstances, the Jharkhand High Court declined to
grant Minimum of Time Scale. This ruling does not help since
the legal framework and facts presented in that writ petition are
significantly different from the governing G.Os and facts
available on record here. Here, the case is not about pay parity
of these writ petitioners as against any other similarly placed
employees. The question that fell for consideration before us is
only as to whether the Government orders that pronounced
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W.A.No.845 of 2022 & batch
extension of revised pay scales 2022 to contractual employees in
KGBV was withheld rightly or wrongly. As we have observed in
the earlier paragraphs of this judgment that withholding of that
benefit to them is incorrect. Therefore, the mandamus prayed
must be granted. Hence, this point is answered accordingly.
47. In summation, we agree, though for different reasons,
with the conclusions of the learned single Judge to the extent of
extending the benefit of Minimum of Time Scale in Revised Pay
Scales, 2022 to the contract employees of KGBVs and uphold
the same. We are unable to agree with the orders of the learned
single Judge concerning the aspects of transfers of teaching
staff of KGBVs and therefore set aside the impugned orders to
that extent.
48. We hold and conclude that the G.O.Rt.No.103, School
Education (Prog-II) Department, dated 29.06.2022 is valid and
the transfers of teaching staff working in KGBVs for the year
2022-23 made in pursuance of the said G.O.Rt.No.103, dated
29.06.2022 are valid. We further hold that payment of
remuneration at the Minimum of Time Scale (MTS) in Revised
Pay Scales, 2022 vide G.O.Ms.No.5, Finance (HR.I - Plg. &
Policy) Department dated 17.01.2022 of the Government of
Andhra Pradesh (by order and in the name of the Governor of
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W.A.No.845 of 2022 & batch
Andhra Pradesh) for contract employees engaged in KGBVs
shall be implemented with effect from 01.01.2022 (January,
2022 pay) and the arrears shall be paid within 12(twelve) weeks
from the date of this order.
49. In the result, in terms of Paragraph Nos.47 and 48, these
matters are disposed of and accordingly,
W.A.No.845 of 2022 is dismissed.
W.A.No.851 of 2022 is allowed in part.
W.A.No.857 of 2022 is allowed in part.
W.A.No.861 of 2022 is allowed in part.
W.A.No.869 of 2022 is dismissed.
W.P.No.11861 of 2023 is dismissed.
There shall be no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall
stand closed.
___________________________
U.DURGA PRASAD RAO, J
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 12.03.2024
LR copy to be marked
(B/o)
Ivd/Dvs
UDPR,J & Dr. VRKS, J
W.A.No.845 of 2022 & batch
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
WRIT APPEAL Nos.845, 851, 857, 861 and 869 of 2022
and
WRIT PETITION No.11861 of 2023
Date: 12.03.2024
Ivd/Dvs
