Telangana High Court

M. Ganna Reddy vs The State Of Telangana on 25 January, 2024

   HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR

           WRIT PETITION(TR) No.4660 of 2017

ORDER:

This Writ Petition is filed praying to call the impugned

proceedings issued by respondent No.2 bearing

RC.No.524/Ser.III/2014, dated 31.05.2015 and set aside the

same as being illegal, arbitrary and contrary to the directions

given by the Tribunal in O.A.No.8904 of 2011 and batch

dated 24.11.2014 and consequently held that the applicant

is entitled to count past service from the date till the date of

declaration for the purpose of pension and pensionary

benefits etc.

2. The petitioner submits erstwhile Government of

Andhra Pradesh has introduced a scheme of Vocational

Education to make the pupils who are not eligible for higher

education and in order to equip themselves with vocational

skills required for gainful employment. The above scheme

was introduced to VIII, IX and X class students initially in

297 high schools and 48 mandal vocational centres in the

entire State of Andhra Pradesh for the academic year 1984-

85. Accordingly, the said Vocational Instructor Posts were

sanctioned. However, the scheme was extended for further

academic years 1985-86 and 1986-87 also. In view of the

said scheme, more than 1030 vocational instructors have

been recruited to fulfil the criteria through District Selection

Committee.

3. The appellant was selected as Vocational Instructor

on part time basis on District Level Committee and was

appointed in the year 1988. The petitioner was appointed on

consolidated pay which was extended from time to time and

the petitioner was discharging his duties on par with regular

employees. Though originally, the petitioner was asked to

impart the relevant trade for VIII and IX classes at 10 periods

per week for each class @ Rs.15/- per period. At that time

Part Time Vocational Instructors (in short 'PTVIs' hereinafter)

got more than Rs.1000/- per month. However, the salary was

consolidated and restricted to Rs.600/- per month

irrespective of work load and the same has been extended for

further 10 periods a week for X Class in the year 1986-87.

4. The petitioner grievance is that though he completed

more than 24 years of service as PTVI by the year 2009

however, the services of the applicant were not regularly

absorbed. Thereafter, a collective representation was made to

authorities from time to time for regularization / absorption

of their services and thereafter, the Government vide

G.O.Ms.No.31 dated 13.02.2009 regularized 1030 part time

vocation instructors working under School Education

Department and by the said Government Order, the

applicant services were regularized with effect from

13.02.2009 i.e., from the date of issuance of said

G.O.Ms.No.31. The petitioner was working on regular basis

since then.

5. The petitioner submits that he is entitled to

regularization from the date of initial appointment but

however his services were absorbed during the year 2009

resulting in the loss of 24 years of service and by virtue of

regularization, petitioner would not get any financial benefits

for the past years and also he would be deprived to get

pension. The Government has issued G.O.Ms.No.653 Fin.,

dated 22.09.2004 stating that the new Contributory Pension

Scheme is not applicable to already existing / serving

employees of Government of Andhra Pradesh and that it

would be applied to all employees joined on or after

01.09.2004. Thereafter, the Association of the petitioner

made a representation to Government on 18.08.2010

requesting to count the past services for the purpose of

pensionary benefits.

6. The applicants' association has made a

representation seeking counting of their service and when no

orders were passed, applicants filed O.A.No.8904 of 2011

and batch seeking declaration that the services rendered by

the applicants' right from the date of their initial

appointment shall be counted for the purpose of pension and

pensionary benefits.

7. It is submitted that the employees who are

discharging similar duties cannot be treated as temporary

employees by introduction of breaks intended to distinguish

them from those given substantive appointment and persons

appointed temporarily processing requisite qualifications as

on the date of appointment and working continuously in

service must be treated as having been appointed

substantively.

8. It is further submitted that Rule 13 of A.P.Revised

Pension Rules provide that the qualifying service of the

Government Servant shall commence either substantively or

in temporary capacity, is entitled for counting temporary

service till the date of his regularization for the purpose of

pension.

9. It is further submitted that authorities have taken

different yardstick from person to person and when

regularising service of persons with effect from the date of

their original appointment the same benefit was not extended

without any justification or reasonable cause. Apart from

that the respondents have regularised the services of

Lecturers from the date of their respective initial date of

appointment vide G.O.Ms.No.56, Higher Education, based on

the judgment of this Court and inspite of the same the

respondents discriminated the applicants which is nothing

but subversive of Articles 14, 16 and 21 of Constitution of

India. In the facts and circumstances stated above the

petitioner prays this Court to pass appropriate orders.

10. The Andhra Pradesh Administrative Tribunal,

Hyderabad in their orders in the O.A.No.8904 of 2011 dated

24.09.2014 ordered as follows:

"Since the applicants are seeking to count the service rendered by them on temporary basis only for the purpose of pension and nothing else and also keeping in view of the above referred order of the Hon'ble High Court, I am inclined to grant relief to the applicant to the extent of counting of their past service prior to their regularization dated 13.02.2009 for the purpose of pension, therefore there shall be a direction to the respondents to pass appropriate orders keeping in view the above observations, for counting the past service rendered by the applicants prior to their regularization for the purpose of pensionary benefits within a period of three months from the date of receipt of a copy of this order. The respondents of both the states pass appropriate orders to the respective applicants falling their jurisdiction."

11. A counter affidavit has been filed on behalf of

respondent No.3. It is submitted that the Commissioner and

Director of School Education, Telangana, Hyderabad

disposed the directions in O.A.No.8904 of 2011 and batch

dated 24.09.2014 by way of appropriate speaking order and

further all the District Educational Officers in the State have

been informed that similar O.As have been filed by the

applicants and the Tribunal issued orders relying on orders

in O.A.No.8904 of 2011 and batch and thereby the

Commissioner and Directorate of School Education

authorised District Educational Officers to issue necessary

orders to applicants in other O.As on the above lines and

submit compliance report immediately.

12. Thereafter speaking order was passed after

examining the request with the following observations:

• Vocational Instructors were appointed initially on various dates in the period from 1984-85 to 1998-99 in the schools on part time basis subject to condition that, their services shall be terminated after 10 months in an Academic Year and re-engaged again at the beginning of next academic year.

• That it was programme/Scheme introduced in the erstwhile A.P State with a view to promote professional skills among students to do self employment. As a part of the programme/scheme, 1030 part time Vocational Instructors were engaged in the Government aided and Local Body Schools to impart Vocational training to students.

• That Government in G.O.Rt.No.505, School Edn. (Prog.I) Dept., dated 17.07.2008 while engaging the 1030 part time vocational Instructors for the academic year 2009 - 09 clearly stated that. "to re-engage 1030 part time vocational instructor on contract basis during 2008 - 09 with a remuneration of Rs.3,500/- (Rupees three thousand and five hundred only) per month to each part time vocational instructor and to obtain an undertaking from part time vocational instructors engaged on contract basis that he/she shall have no right to claim for regularization of his/her services at present or in future. The honorarium shall be paid to such part time vocational instructors engaged on contract basis from the date of their joining in the High Schools and the Mandal Vocational Education Centres concerned in the academic year 2008 - 2009 duly entering into a fresh agreement". According to the above Government order they have been re-engaged only on terms and conditions issued in the said Government order.

• That the services of Vocational Instructors were engaged on tenure basis for a period of 10 months and are terminated by the end of academic year.

• That     Government          issued        orders    in
  G.O.Ms.No.31        School     Education        (Prog.I)

Department dated 13.02.2009 to regularize the services of part-time vocational instructors in the existing Craft Teachers vacancies and accordingly regularized the services of 1030 Part-Time Vocational Instructors who were re- engaged in the Schools in the State in June, 2008 for the academic year 2008-09 in the scale of pay 5470-12385 w.e.f., date of issue of orders.

• The Government in G.M.No.573/225/A3/PC- III/97, Finance and Planning Department, dated 01.09.1997 clearly stated that, "cases for counting of service for pension and any other purposes for the period prior to the effective date of regularization cannot be acted upon"

• The Vocational Instructors have drawn only consolidated pay as part time Vocational Instructors and as such they were not appointed either temporary or substantive manner, their request for regularization i.e., counting of part time service for purpose of pension in against to the Rules. Their services were continuously have breaks in each year and that counting of service with breaks or gaps shall not be counted for any purpose.

Hence, the part time service cannot be counted as regular service for the fact that their Original Appointments were not against the sanctioned posts.

• Moreover, Rule 10(h) of Andhra Pradesh State and Subordinate Service Rules. 1996 speaks as follows:

"A person appointed to any part-time post, created in lieu of a whole time post borne on the cadre of a service, class or category shall not be regarded as a probationer in such service nor shall he be entitled by reason only on such appointment to any preferential claim to future appointment to such service, class or category;"

• After going through the aforesaid definition, since the applicants have drawn only consolidated pay, as part time Vocational Instructors, and as they were not appointed either temporary or substantive manner, their request for regularization i.e., counting of part time service for purpose of pension is against to the Rules. Hence, the part time services shall not be counted as regular service.

• As per Andhra Pradesh Revised Pension Rules, 1980 Rule, 13 (Commencement of qualifying Services):

"Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appoint either substantively or in an officiating or temporary capacity."

As per Rule 14 (Conditions to subject to which service qualifies)

The services of the Government servant shall not qualify unless his duties and pay are regulated by the Government or under conditions determined by the Government.

For the purpose of sub-rule (1), the expression services means service under the Government and paid by the Government from the consolidated fund of the State but does not include service in a non pensionable establishment unless such service is treated as qualifying service by the Government.

• Government in G.O.Ms.No.653, Finance (Pension-I) Department, dated 22.09.2004 issued new pension scheme i.e. Contributory Pension Scheme to Andhra Pradesh State Government employees and all the posts with effect from the 1st September, 2004 that, "in place of the then existing non-contributory defined benefit pension scheme. The part time Vocational Instructors were regularized as per

G.O.Ms.No.31, Edn., dated 13.02.2009 and they cannot come under the old pension rules.

13. It is submitted that there cannot be any

appointment in contravention of statutory provisions,

Constitutional mandate, as such appointments amounts to

illegal appointments as per verdict of Hon'ble Apex Court in

a Constitutional bench judgment rendered in Uma Devi

case. Hence, the question of counting part time service for

purpose of pension does not arise. It is therefore submitted

that there are no merits found in the O.A and hence it

deserves to be dismissed.

14. Learned counsel for the petitioner submits that the

matter is squarely covered by the order of High Court for the state

of Andhra Pradesh in W.P.No.1425 of 2019, dated 15.10.2019.

Thereafter learned Government Pleader for Services-I sought time

to verify the same and matter was adjourned from time to time.

However, no submissions were adduced on behalf of the State,

thereafter matter was reserved.

15. The issue in W.P.No.1425 of 2019 also pertains to

Part-time Vocational Instructors appointed on different dates

during the years 1985-1991. The petitioners therein made a

representation for regularizing the services and the

Government issued G.O.Ms.No.31 dated 13.02.2009

regularizing the services of 1030 Vocational Instructors with

effect from 13.02.2009 instead of regularizing their services

from the date of their initial appointment. The services of the

petitioner in the present case were also regularized under

the same G.O.Ms.No.31 dated 13.02.2009. Petitioners

therein along with the petitioners in the present writ petition

has filed O.A.No.8904 of 2011 and batch questioning the

action of authorities in not including the petitioner's for the

purpose of calculating pensionary benefits.

16. In the said case, the Government also filed counter

affidavit stating that in view of Rule 10(f) of Andhra Pradesh

State and Subordinate Service Rules, 1996 and Rules 13

and 14 of Andhra Pradesh Revised Pension Rules, 1980 the

applicants are not entitled to the said benefit. The Division

Bench after hearing the concerned parties relied upon the

judgment of this Court in Devarakonda Sri Lakshmi v.

Government of Andhra Pradesh 1 and granted relief to the

applicants therein to the extent of counting past service

2010 (2) ALD 165

period for regularization and directed the respondent therein

to pass appropriate orders.

17. The issue for consideration in the present writ

petition is whether to count the past services of the writ

petitioners, prior to their regularization for the purpose of

pension?

18. The Hon'ble Division Bench of this Court in

W.P.No.1425 of 2019 (supra) at paragraph Nos.7 to 15 held

as under:

"7. In our view this issue is no more res integra. A Division Bench of this Court in Devarakonda Sri Lakshmi held as under:

"The law is well-settled that the mere form of the order is irrelevant but the surrounding facts and circumstances shall be taken into consideration to find out the true character of the order. Despite the use of a specific expression, the Court has to consider whether the employee had a right to such post. Particularly when the services rendered by a temporary employee are followed by regularization of his service, there is no reason to exclude the period of temporary service for computing the qualifying service for the purpose of pensionary benefits.

It is also relevant to notice that Rule 14 of the A.P. Revised Pension Rules, 1980 provides that the services of a Government Servant shall not qualify for pension unless his duties and pay are regulated by the Government or under conditions determined by the Government. Sub-rule (2) of Rule 14 further made it clear that the expression 'service' means that service under the Government and paid by the Government from the Consolidated Fund of the State.

In the light of Rule 14, the true test is whether the services of the employee were regulated by the Government and whether he was paid from the Consolidated Fund of the State. Any period of service which satisfies the above test, in my considered opinion shall be treated as qualifying service for the purpose of Rule 13.

For the aforesaid reasons, I do not find any substance in the contention of the respondents that the period of service spent by the petitioner on consolidated pay cannot be taken into consideration for determining her qualifying service.

Accordingly, the impugned action of the respondents in denying the petitioner pensionary benefits is hereby declared as arbitrary and unreasonable."

8. Similarly in State of Tamil Nadu v. T.N. Registration Department Ministerial Service

Association2, the Apex Court while dealing with an identical issue, observed as under:

"1. The State of Tamil Nadu is in appeal before us challenging the judgment dated 20-11- 1990 passed by the Tamil Nadu Administrative Tribunal, by which the respondent was held entitled to count the period from 28-6-1950 (the date on which he was appointed) till 3-12-1962 as the period for the benefit of pension under the Tamil Nadu Pension Rules, 1978.

2. The contention of the learned counsel appearing on behalf of the State of Tamil Nadu is that the post of Section Writer which was held by the respondent was brought under graded pay with effect from 1-10-1970, and, therefore, he would be entitled to pension only with effect from that date. It is pointed out that, prior to 1-10-1970, the respondent was being paid a fixed salary every month and, therefore, the period from 28-6- 1950 to 2-12-1963 cannot be counted for purposes of pension particularly as the respondent has already been paid one month's pay for every completed year of service for the period aforesaid.

3. A perusal of the judgment passed by the Tribunal indicates that the State Government had contended that the respondent was not entitled to count the period from 1950 to 1963 for purposes of pension, as he had rendered only temporary service for that period. The other contention was

that Section Writers would be entitled to count the period of service for purposes of pension only with effect from 1-10-1970 as it is from that date that the post was brought under graded pay. Both the contentions were rejected. The Tribunal found that Rule 2 of the Tamil Nadu Pension Rules, 1978 categorically provides that the Rules were applied to all government servants appointed to the service and posts in connection with the affairs of the State which are borne by pensionable establishments, whether temporary or permanent. Consequently, even though the respondent had rendered temporary service for the period from 1950 to 1963, he would be entitled to count that period for the purpose of pension. The Tribunal also found that the date 1-10-1970 on which the post of Section Writer was brought under graded pay has no nexus with the benefit of pension payable to those Section Writers who had, prior to that date, rendered temporary service. It was held that on the basis of that date, the employees could not be categorised into two classes.

4. Learned counsel for the State contended that the post of Section Writer was not a pensionable post and it became a pensionable post only with effect from 1-10-1970 and, therefore, the entire period of service rendered by the respondent on this post prior to 1-10-1970 would have to be excluded. This was not the contention raised

before the Tribunal nor has any rule to that effect been shown to us that the post of Section Writer was a non-pensionable post up to 1-10-1970. We, therefore, cannot accept this contention.

5. In view of the above, this appeal has no merits and is dismissed, but without any order as to costs."

9. Similar view was taken by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in State of Andhra Pradesh v. M. Raja Rao and also the Karnataka High Court in B.H. Mahadevappa v. Karnataka Power Transmission Corporation Ltd.

10. In view of the judgments of the Apex Court and other High Courts referred to above, we are of the view that the past service of the applicant, who is the respondent herein, prior to his regularization, has to be considered for the purpose of pensionary benefits.

11. It is also to be noted here that the orders passed by the Tribunal in O.A.No.6524 of 2014 and batch dated 14.11.2014 were not challenged and they have become final. Therefore, once the orders of the Tribunal are not challenged and have become final, there is no other option for the authorities except to implement the same.

12. Viewed from any angle, we find no grounds to interfere with the impugned order and the writ petition is liable to be dismissed.

13. Accordingly, the Writ Petition is dismissed. No costs."

19. Learned counsel for the petitioner in support of his

contentions relied on the judgment of this Court in

W.P.Nos.20691 of 2012 and batch dated 20.11.2018

wherein this Court held as follows:

"In the facts and circumstances of the case and in our considered view, it is found that the respondents were initially appointed as Medical Officers/Civil Assistant Surgeons/Assistant Professors on temporary basis on payment of daily honorarium. Later, they were appointed as regular Civil Assistant Surgeons and were allowed to draw regular pay scales as per the orders of the Hon'ble Supreme Court in Civil Appeal No.4919 of 1989, W.P. (Civil) No.506 of 1988 & batch, vide G.O.Ms.No.24, Health Medical & Family Welfare (B2) Department dated 31.01.2002. But, the service rendered by the respondents on daily honorarium basis from the date of their initial appointment till 31.03.1990 was not considered for the purpose of pensionary benefits and the representations submitted by the respondents in

that regard were rejected contrary to Rules 13, 14 and 29 of the Revised Pension Rules.

For better adjudication of the lis, Rules 13, 14 and 29 of the Revised Pension Rules are extracted hereunder:

13. Commencement of qualifying service:- Subject to the provisions of the rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.

14. Conditions subject to which service qualifies:- (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. (2) For the purposes of sub-rule (1), the expression service means service under the Government and paid by the Government from the Consolidated Fund of the State but does not include service in a non-

pensionable establishment unless such service is treated as qualifying service by the Government.

29. Addition to qualifying Service:- Every Government servant who at the time of retirement on superannuation, has put in a qualifying service of less than 33 years, shall be entitled to add to the qualifying service, for the purpose of pensionary benefits, the difference between 33

years and the qualifying service at the time of superannuation, such difference not exceeding three years:

From a conjoint reading of the above rules it can be easily concluded that the temporary service rendered by an employee shall also be counted as qualifying service for the purpose of pensionary benefits.

In similar set of facts, in M.Raja Rao, the Division Bench of this Court held as follows:

"From the above reproduced Rules, it is clear that qualifying service of a Government Servant commences from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity, subject to the exceptions 13 contained in clauses (a) and (b) of Rule 13 of the Rules. A temporary employee shall further satisfy the conditions stipulated in Rule 14 of the Rules for counting his temporary service for pensionary benefits. Under this Rule, unless his duties and pay are regulated by the Government or under the conditions determined by the Government, such service was not qualified for pension. The meaning of the word "service" under sub-rule (1) of Rule 14 of the Rules is explained in sub-rule (2) thereof, as per which the service is under the Government and the salary is paid by the Government from the Consolidated Fund of the State, but the same does

not include the service of a non-pensionable establishment, unless such service is treated as qualifying service by the Government.

In view of the above, the contentions urged by the learned Government Pleader that as the respondents rendered temporary service from the date of their appointment till 31.03.1990, the same could not be counted for the purpose of pensionary benefits as per Rule 13 of the Revised Pension Rules as the respondents were not appointed either substantively or in an officiating or temporary capacity; and payment of daily honorarium would not come within the meaning of Rule 14 of the Revised Pension Rules as the service rendered by the respondents during the said period was purely on temporary basis and they were paid daily honorarium during the said period, they have no right to continue or for future employment, are unsustainable for the reason that the service rendered by the respondents from the date of their initial appointment till 31.03.1990 comes within the ambit of service under sub-rule (1) of Rule 14 of the Revised Pension Rules, as the said service was under the Government and daily honorarium was paid by the Government from the consolidated 14 funds of the State, the respondents rendered service in pensionable establishment. Therefore, the service rendered by the respondents on temporary daily honorarium

basis till their regularization has to be counted as qualifying service for the purpose of pensionary benefits, special grade sanction of 8/16 years scales under automatic advancement scheme, etc. For the reasons stated supra, we see no reason to interfere with the impugned orders passed by the Tribunal allowing the O.As. filed by the respondents respectively. The Writ Petitions are devoid of merit and liable to be dismissed.

Petitioners shall pay the arrears of pension and other benefits to the respondents within a period of eight weeks from the date of receipt of a copy of this order.

Accordingly, all the Writ Petitions are dismissed."

20. Heard learned counsel on either side and perused

the material available on record.

21. In view of the observations made in the above cited

writ petitions, the case of the petitioner on hand also

pertains to G.O.Ms.No.31, dated 13.12.2019 issued by

Government regularizing the services of 1030 Vocational

Instructors with effect from 13.02.2009. In view of the

similar set of facts and circumstances of the case, since the

petitioners in the above writ petitions were being granted

with the same relief, in order to maintain parity, the

petitioner in the present writ petition who is also one among