Andhra Pradesh High Court - Amravati
P V Bharadwaja vs The State Of Ap on 6 September, 2024
1
APHC010370412020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 24708 OF 2020
Between:
P.V.Bharadwaja ...PETITIONER
AND
The State of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. VAMSI KRISHNA VARANASI
Counsel for the Respondent(S):
1. GP FOR SERVICES III
2. GP FOR SCHOOL EDUCATION
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India
"to
to issue a Writ or Order or Direction more particularly one in the nature of
Writ of Mandamus declaring the proceedings in Rc.No.9682/(B4)A3/2008, dated
rd
20.02.2020
2.2020 issued by the District Educational Officer, Guntur, 3 respondent herein
as illegal, arbitrary and violative of the concept of doctrine of superstation of powers
which is a basic structure of the Constitution of India and further violative of the law
laid down by the Hon'ble Full Bench in W.P.No.3002 of 2001 and batch dated
26.07.2001 and further declared in Y.Sidda Reddy v. Government of A.P reported in
2006(3) ALD 546 and pass such other and further orders".
2. Heard V. Mallik, learned counsel, representing Mr. P.V.Sai Krishna,
learned counsel for the petitioner and Ms.Sudeepthi Potluri, learned Assistant
Government Pleader, Services-III for the respondents.
3. Learned counsel for the petitioner would contend that he was
appointed as Grade-II Telugu Pandit (unaided post) in the existing vacancy
with effect from 01.06.1983 and he was promoted as Grade-I Telugu Pandit
vide proceedings dated 05.12.1988 with effect from 18.08.1988 and his post
as Grade-I Telugu Pandit with retrospective effect with effect from 01.01.1984
was approved by the proceedings of the 3rd respondent dated 06.11.2002 in
pursuant to the orders of this Court in W.P.No.23338 of 1996 filed by the
petitioner. Even before the said proceedings vide G.O.Ms.No.178, dated
20.07.1990 he was admitted into grant-in-aid as Grade-I Telugu Pandit. While
the matter stood thus, the 1st respondent has issued Memo dated 10.01.1980
wherein it was stated that the un-aided service shall be reckoned for the
purpose of pay fixation and basing on the same, this Court in "N.
Hanmantharao v. Government Andhra Pradesh"1, wherein it was held that
the un-aided service must also be taken into consideration for the purpose of
computing the eligible service for granting the benefit of the career
advancement scheme and automatic advancement scheme. Therefore, the
impugned order dated 20.02.2020 issued by the 3rd respondent the claim of
the petitioner for reckoning of service for carreer advancement and automatic
advance scheme and consequently for revised pay fixation is exfacie illegal,
1994 (2) SLR 590
arbitrary and contrary to the undertaking given by the 1st respondent in
W.P.No.3002 of 2021 and batch dated 26.07.2001. As the petitioner was
appointed prior to 25.04.2020, the undertaking given in W.P.No.3002 of 2021
applies to the petitioner and the respondents cannot deny the said benefit. It is
further contended that the petitioner was retired from service on 31.01.2011
and he is not getting any revised pay for the purpose of career advancement
scheme and automatic advancement scheme despite the proceedings dated
06.11.2002 and 02.01.2003 is highly illegal and arbitrary. Further the 3rd
respondent has fixed the pay of the petitioner by reckoning unaided services
in pay scales of 1999, 2003 vide proceedings dated 02.01.2003 issued by the
3rd respondent and that the 3rd respondent is denying the further benefit of
2005 pay scales on the sole ground that the 1st respondent has issued the
ordinance and the Act and the relevant provisions being struck down (Section
3(1) and Section-4) and the stand adopted by the 3rd respondent is highly
illegal and contrary to the order passed by the Hon'ble Division Bench of this
Court. Hence, inaction of the respondents is questioned in this writ petition
and requested to allow the same.
4. Per contra, the respondents filed counter-affidavit denying all material
averments made in the writ affidavit and mainly contended that as per Act 9 of
2000 no employee of a private aided educational institution shall claim to
counter the service rendered or as the case may be, the increments drawn in
the respective post prior to the date of approval of his appointment in the post
duly admitted to the grant-in-aid for the purpose of automatic advancement
scheme, career advancement scheme and pension. Fixation of pay is a matter
of contract between the institution and the employee or at the best of matter of
regulation by the State by a law. As per observation and understanding of the
judgment of the Hon'ble Division Bench in Y. Sidda Reddy's case, the
management who has to bare the expense/ monitory benefits to be paid to the
petitioner in connection with automatic advancement scheme by counting
unaided service rendered prior to absorption into aided post. Thus, there is no
obligation on the part of the Government to pay expenses incurred for
automatic advancement scheme and is for the management to the expenses.
It is the duty of the managements to extend the benefits of such schemes and
that it is the duty of the 4th respondent to implement the verdict of decision of
the Division Bench of this Court. Hence, requested to dismiss the writ petition.
5. Perused the record.
6. Learned counsel for the petitioner drawn the attention of this Court
with regard to Andhra Pradesh Revised Pension Rules, 1980 Clause-iii
counting of notional pay in Automatic Advancement scales of Teachers as
emoluments:- "The notional pay fixed in the Automatic Advancement scales of
Teachers in the light of the orders issued in G.O.Ms.No.133 and 134 Fin. &
Plg (FW.PC.II) Dept., dt.8.04.93, counts as emoluments for purpose of
pensionary benefits though it was not actually drawn". He further relied on a
decision of this Court in "Y. Sidda Reddy v. Government of Andhra
Pradesh"2, wherein the Hon'ble Division Bench held as follows:-
61. At the cost of repetition, we would like to extract Section 3 of the
Ordinance again, to understand as to what exactly the State seeks to achieve by the
impugned Ordinance. 3. Notwithstanding anything contained in any order of the
Government or any judgment of any Court or Tribunal, every employee of a Private
Aided Educational Institution, shall from the date of approval of his appointment in an
aided post, be eligible to count the service rendered after such date of approval, for
fixation of pay in the said post and Automatic Advancement Scheme, Career
Advancement Scheme, Pension made applicable or extended to such employee from
time to time. The Section purports to deal with four aspects of the service of the
employees of private aided educational institution. (1) Fixation of pay (2) Automatic
advancement scheme (3) Career Advancement Scheme and (4) Pension. The
Section purports to declare the eligibility of such employees to have only the "aided
service "to be taken into account for the above mentioned four purposes, it must be
noticed at the outset that, having regard to the definition of the expression 'private
aided educational institution' the Ordinance has not taken note of the distinction
between the two classes of educational institutions imparting education to children
above and below 14 years. We have already noticed that the constitutional
obligations of the State visa-vis the years mentioned two classes of educational
institutions are different. The Section which opens with a non-obstante clause
recognizes the existence of certain earlier government orders and judgments of the
Courts or Tribunals to the contra. We are told that the attempt of the Legislature is to
take away the basis of the earlier judgments of this Court. Whether the Ordinance
achieved the purpose, within the permissible framework of law is a different question
which requires an examination.
.....
64. Insofar as the other three aspects of the service referred to earlier are
concerned, the Section purports to declare that only the "aided" service rendered
would be taken into consideration for determining the eligibility of the employee for
the benefits of those various schemes. We do not understand the purpose sought to
be achieved by such stipulation insofar as the automatic advancement scheme and
career advancement scheme are concerned. We have already noticed that those
schemes only declare the entitlement of the employees for a higher scale of pay on
completion of a certain period of service. Necessarily the payment in such higher
scale will have to be made by the management (educational institution). If the
Indiankanoon.org/doc/149298 = 2006(3) ALD 546
intention of Legislature is to disapprove the burden undertaken by the State of the
financial liability arising out of the extension of those schemes to the employees of the
private aided educational institutions, the Legislature need not declare that the
unaided service of such employees shall not be counted for the purpose of
application of those schemes. The Legislature could have simply declared the limits
of the financial liability of the State while extending aid to private educational
institution employees to whom the above mentioned schemes are made applicable.
The submission of the State as can be seen from the counter affidavit in this regard
that there is no authentic way of verifying the "unaided service' rendered by the
employees in our view is wholly irrelevant. When the primary liability to make the
payment in accordance with the terms of the above mentioned schemes is on the
managements, it is the look out of the management to maintain a proper record of the
length of the service of the employees, By making a declaration such as the one
made under Section 3 insofar as the career advancement scheme and the automatic
advancement scheme are concerned, the Legislature in our view only made an
arbitrary declaration that the unaided service shall not be counted for the purpose of
conferring the benefits of the above mentioned schemes without there being any
rational State purpose. On the other hand such a declaration only enables the
employer to defer the benefit of those schemes to the employees though the
employee rendered long service which but for the arbitrary legislative declaration
entitles the employee for the benefits of the above mentioned two schemes. The
professed purpose of the above mentioned two schemes is to give some monetary
benefit to the employees who have no opportunity of any promotions in the service
and consequent stagnation in their income. The two schemes are still in force and the
State thinks it fit to continue the same, but by the terms of the Ordinance the
employees are irrationally deprived of the benefits of the schemes. [We therefore hold
that Section 3 to the above mentioned extent is unconstitutional].
7. This Court in the decision clearly noted that the above decision dealt
with the issue the unaided service also to be taken into consideration for the
purpose of extending the benefit either under the Career Advancement
Scheme or Automatic Advancement Scheme is reported in "N. Hanumantha
Rao and Others v. Government of Andhra Pradesh and Others"3. The
Hon'ble Division Bench of erstwhile High Court of Andhra Pradesh in
W.P.Nos. 3460 of 2008 and batch dated 23.08.2017 following the decision of
W.P.No.13662 of 1988, dated 20.12.1993 (AP) = 1994(2) SLR 590
the Y. Sidda Reddy's case (cited supra) discussed the validity of the 2005
Ordinance and held that, except in so far as the 2005 Ordinance dealt with the
aspect of pension, the rest of the Ordinance was unconstitutional. In effect,
the validity of the 2005 Ordinance, in so far as it related to pension, was
upheld and the rest of the 2005 Ordinance was declared unconstitutional.
8. In the instant case, the petitioner was retired from service on
31.01.2011 and he is not getting any revised pay for the purpose of career
advancement scheme and automatic advancement scheme.
9. It is the contention of the respondents that as per proceedings of the
3rd respondent dated 06.11.2002 there is no provision in the Departmental
rules allowing the promotion of the incumbents with retrospective effect, the
promotion of the petitioner made by the management of the school with
retrospective effect with effect from 01.01.1984 to the cadre of Grade-I Telugu
Pandit (un-aided post) is hereby approved as a special case, which was
issued pursuant to the orders of this Court dated 02.04.2002 passed in
W.P.No.23338 of 1996 filed by the petitioner.
10. Following the decision cited supra, the validity of legislative
enactment in Act 37/2005 in W.P.No.3460 of 2010 and batch dated
23.08.2017 the impugned proceedings issued by the 3rd respondent dated
20.02.2020 are contrary to the doctrine of separation of powers as contended
by the learned counsel for the petitioner. In the instant case, the 3rd
respondent has fixed the pay of the petitioner by reckoning unaided services
in the pay scales of 1999, 2003 vide proceedings dated 02.01.2003 issued by
the 3rd respondent and denying the further benefit of 2005 pay scales on the
ground that the 1st respondent had issued the ordinance and the Act and the
provisions being struck down i.e Section 3(1) and Section 4 and the stand
adopted by the 3rd respondent is illegal and arbitrary and contrary to the
decision of the Hon'ble Division Bench.
11. In the light of the facts and circumstances of the case and following
the decisions cited supra, this Court is inclined to allow the writ petition while
declaring the impugned proceedings dated 20.02.2020 issued by the 3rd
respondent as illegal and arbitrary and same is hereby set aside.
12. Accordingly, this Writ Petition is allowed. There shall be no order as
to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Dated: 06.09.2024.
KK
