High Court of Andhra Pradesh's Judgment ordering Govt. Scales of pay to Private College Lecturers
* HONBLE Dr. JUSTICE K.G.SHANKAR + Writ Petition No.25526 of
1999andWrit Petition No.13945 of 2006 % 12-12-2013 #
K.Chandrasekhara Rao Petitioner Vs. $ Hyderabad Regional Conference
of The Methodist Church in India, Hyderabad, Rep. by its Chairman,
Chappel Road, Nampally, Hyderabad; and others Respondents ! Counsel
for the petitioner: Dr. P.B.Vijaya Kumar ^ Counsel for respondents
1&2: Sri P.Veera Reddy Counsel for respondents 3 to 5:
Government Pleader for Higher Education Head Note: ? Cases
referred:1. AIR 1987 SC 3112. 2006 (2) ALD 2513. 1991 (3) ALT 3354.
1995 (2) An.W.R. 1465. 1996 (3) ALD 8HONBLE Dr. JUSTICE K.G.SHANKAR
Writ Petition No.25526 of 1999andWrit Petition No.13945 of 2006
Date: 12-12-2013 W.P.No.25526 of 1999: Between K.Chandrasekhara Rao
Petitioner and Hyderabad Regional Conference ofThe Methodist Church
in India,Hyderabad,Rep. by its Chairman,Chappel Road, Nampally,
Hyderabad;and 2 others Respondents W.P.No.13945 of 2006: Between
Dr. K.Chandrasekhara Rao Petitioner and Managing
Committee,Hyderabad Regional Conference,Methodist Church of
India,Rep. by its Chairperson,Hyderabad-500 001;and 4 others
Respondents HONBLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.25526
of 1999andWrit Petition No.13945 of 2006 Common Order: These two
writ petitions are disposed of through thecommon judgment. The writ
petitioner is common in boththecases.
MethodistDegreeCollege,Hyderabad,represented by its Manager and
Correspondent, is the 2ndrespondentinboththewritpetitions.
TheMethodistChurch is the 1strespondent.
InW.P.No.25526of1999,whichshallbereferredtoastheformerwritpetitionhereinafter,Commissioner,CollegiateEducationofAndhraPradeshisthe3rdrespondent.
TheDirectorofHigherEducation,GovernmentofAndhraPradeshandtheRegionalProvidentFundCommissioner,Hyderabad,are
respondents 4 and 5 in W.P.No.13945 of 2006, whichshall be referred
to as the latter writ petition hereinafter.
2.Intheformerwritpetition,thepetitionerinitiallyclaimedforadirectiontoextendRevisedPayScalesof1999
to him.It would appear that the Revised Pay Scaleswere implemented
to the petitioner subsequent to the filingof the writ petition.The
writ petitioner amended the prayerthrough orders dated 20-01-2011
in W.P.M.P.No.28773 of2010 seeking for extending Revised Pay Scales
from timetotimeincludingtheRevisedPayScalesof2004and2009.
Inthelatterwritpetition,theordersdated06-7-2006retrenchingthepetitionerarequestioned.
Dr.P.B.VijayaKumar,learnedcounselforthepetitioner,contended that
the retrenchment of the petitioner
throughordersdated06-7-2006isliabletobesetasideandtheRevisedPayScalesof2004and2009areliabletobeimplemented
to the petitioner. 3.Thepetitionerwasappointedin1997-98astemporary
Lecturer on hourly basis.On 02-7-1998, he was appointed temporarily
for the academic year 1998-99.While things stood thus, on
21-7-1998, the
2ndrespondent-CollegeissuedaNotificationtofillupthepostsofregularLecturers.
Thepetitionerappliedinresponse to the Notification.He was called
for interview to appear before the Board on 04-9-1998.On
11-01-1999, the petitioner was appointed and was puton probation
for a period of 3 years. It is the case of
thepetitionerthatOsmaniaUniversityapprovedtheappointmentofthepetitionerasaregularcandidatethroughproceedingsdated22-9-1999.
Rule7(4)oftheAndhraPradeshEducationalInstitutions(Establishment,Recognition,AdministrationandControlofInstitutionsofHigherEducation)Rules,1987(1987Rules,forshort)passedthroughG.O.Ms.No.29,Education(Rules),dated05-02-1987,
reads:( 4) Paymentofsalariestostaff: Theeducationalagency of any
private institution shall pay salaries to
itsstaffaspertheGovernmentscalesofpayandbyfollowingsuchprocedureasmaybeprescribedbyGovernment
from time to time, in this regard.
OnthebasisofRule7(4)of1987Rules,thepetitionerclaimsthatheisentitledtotheRevisedPayScales
of 2004 and 2009. 4. Separate Rules were issued in respect of
MinorityEducationalInstitutionscalledtheAndhraPradeshMinorityEducationalInstitutions(Establishment,Recognition
and Regulation) Rules, 1988 (1988 Rules, forshort) issued through
G.O.Ms.No.526, Education (Rules),dated 21-12-1988.Rule 8(3) of 1988
Rules reads:(3) The staff appointed shall be paid salaries at the
ratesprescribed and by following the procedure prescribed bythe
competent authorities from time to time. The Rule did not adumbrate
that salary to the staff
inaprivateinstitutionshallbeonparwiththeGovernmentscalesofpay.
Rule8(3)of1988RulesmerelycontemplatesthatthesalariesofMinorityEducationalInstitutionsshallbeattheratesprescribedandshallbepaid
following the procedure prescribed by the competentauthority from
time to time. 5. G.O.Ms.No.1, Education (P.S.2), dated
01-01-1994,createdTheAndhraPradeshEducationalInstitutions(Establishment,Recognition,AdministrationandControlofSchoolsunderPrivateManagements)Rules,
1993 (1993 Rules, for short).1993 Rules, from
theverytitlearewithreferencetothecontrolandadministrationofSchoolsandnotCollegesorJuniorColleges.
Thepreambleof1993RulesreadsthattheRuleswereframedinsupersessionofvariousRulesincluding1988RulesissuedthroughG.O.Ms.No.526,dated
21-12-1988, so far as Schools are concerned.In other words, 1993
Rules did not supersede 1988
RulessofarastheDegreeCollegesandJuniorCollegesareconcerned. It is
the contention of the learned counsel
forthepetitionerthat1993RulesareapplicabletoSchoolswhereas1988RuleswereapplicabletoallMinorityEducational
Institutions.In view of the preamble of
1993Rules,itisevidentthat1993Rulessuperseded1988RulessofarastheSchoolsareconcerned.
Consequently,after1993Rulescameintoforce,theMinorityEducationalInstitutionsotherthantheSchoolsaregovernedby1988RuleswhereasMinorityEducationalInstitutionssofarasSchoolsareconcernedare
governed by 1993 Rules. 6.In
FrankAuthorityP.S.E.Assocn.v.UnionofIndia[1],withreferencetoDelhiSchoolEducationAct,1973,
it was observed that the requirement under
Section10oftheDelhiSchoolEducationActthatscalesofpayandallowancesofemployeesofrecognizedprivateschoolsshallnotbelessthantheemployeesofschoolsrun
by appropriate Authority does not infringe Article 30(1)of the
Constitution of India. 7. In M.D.Soujanya v. S.V.V.P.V.M.C. Mahila
VidyaPeeth[2],alearnedsingleJudgeofthisCourtheldthatRule7(4)of1987Ruleswasmadeinpublicinterestandbasedonpublicpolicyandthatthesamecannotbewaived.
The decision in this case was questioned in WritAppeal No.930 of
2006. The Division Bench agreed withthe view expressed by the
learned single Judge and heldthat whether the State extends
financial assistance to theprivate educational institutions or does
not so extend,
themanagementsoftheprivateeducationalinstitutionsarenotrelievedoftheirobligationtopaypropersalaryandother
benefits contemplated by law.
8.Later,inW.P.No.19832of1999,anotherlearnedsingleJudgeofthisCourtonceagainheldthattheemployeeofaprivateunaidedcollegeisentitledtobepaid
the scales prescribed by the Government on par withthe Government
Degree College Lecturers.
9.Onthebasisofthosedecisions,thelearnedcounselforthepetitionercontendedthattheformerwritpetition
may be allowed. 10. Sri P.Veera Reddy, learned counsel for the
2ndrespondent-Collegebeingtheemployerofthepetitioner,didnotquestiontheapplicationof1988RulestotheMinorityEducationalInstitutions.
Hedidnotevenclaimthat1993Rulessuperseded1988Rulessofarasthe2ndrespondent-Collegeisconcerned.
He,however,submittedthatunderRule8of1988Rules,theappointment of
teaching and non-teaching staff in MinorityEducational Institutions
shall be made by
aStaffSelectionCommitteeconstitutedbytheRepresentativeoftheCompetentAuthorityandthatthecandidatessponsoredbyEmploymentExchangealoneshallbeeligibleforselectionbytheStaffSelectionCommittee.
HepointedoutthatRule8of1988Rulesenvisages that in the event the
Employment Exchange
isnotabletosponsorsuitablecandidates,theconcernedEducationalInstitutionmayadvertisecallingforapplicationsfromthecandidatespossessingrequisitequalifications.
HecontendedthatthepetitionerwasnotsponsoredbytheEmploymentExchangeandthatthevery
appointment of the petitioner was not in accordancewith Rule 8 of
1988 Rules. 11.Itmayberecalledthatthepetitionerhasnotforced himself
upon the 2nd
respondent-College.InresponsetoaNotificationdated21-7-1998,thepetitioner
was called to interview and was interviewed on04-9-1998. He was
subsequently appointed and was puton probation with effect from
11-01-1999. I am afraid
thatthe2ndrespondent-Collegeandthe1strespondent-Management cannot
take advantage of their own lapse
innotcallingcandidatesfromtheEmploymentExchangeand deny the
benefits to the petitioner. 12. The learned counsel for the
respondents 1 and 2submitted that the respondents 1 and 2 never
intended toappoint the petitioner as a permanent candidate, so much
so, they did not follow the preliminary part of Rule8 of 1988
Rules.I am afraid that the respondents 1 and
2aretryingtoapprobateandreprobateatoneandthesame time.Having
appointed the petitioner as a Lecturer and having put the
petitioner on probation for
aperiodof3years,itwouldnotlieinthemouthsoftherespondents1and2thattheyneverintendedtoappointthepetitioneronapermanentbasis.
Thecontentionoftherespondents1and2thatthepetitionerwasnotappointedinaccordancewiththeRulesandRegulationsandthatthepetitionerwasnotappointedonpermanentbasis,somuchso,Rule8(3)of1988Ruleswouldnotapply
to the petitioner, therefore, cannot be accepted andis accordingly
rejected.
13.Asanalternativedefence,thelearnedcounselfortherespondents1and2contendedthatthesalarieshavenotbeenprescribedsofarbythecompetentAuthority
and that the petitioner consequently cannot seekfor the scale on
par with other Government Lecturers. Aslong as no scale is
specially provided for the teaching andnon-teaching staff of the
Minority Educational
Institutions,ithastobeassumedthattheyareentitledtothesameScale of
Pay as the teaching and
non-teachingstaffofotherGovernmentInstitutions.
Consequently,thereliefthatthepetitionerseeksthroughthe1stwritpetitiondeservestobegranteddirectingtherespondentstoimplementRevisedScalesofPaytothepetitioner
as and when such Scales come into force.
14.Sofarasthe2ndwritpetitionisconcerned,thepetitioner passed NET
and SLET and also holds Ph.D. inTelugu.
However,recordingthattherewasnosufficientworkload,thepetitionerwasretrenchedthroughproceedingsdated06-7-2006.
Interimorderswerepassed by this Court on 08-7-2006 suspending the
orderofretrenchment. Thepetitionerconsequentlyhasbeencontinuing in
service.
15.ItiscontendedbythelearnedcounselforthepetitionerthattheorderofretrenchmentwaspassedwithoutpriorapprovalunderSection83oftheEducationAct,1982(theAct,forshort).
Section83oftheActdealing with the retrenchment of employees
reads:Whereretrenchmentofanyemployeeisrenderednecessarybythemanagementorcompetentauthorityconsequentonanychangerelatingtoeducationorcourseofinstructionortoanyothermatter,suchretrenchment
may be, effected with the prior approval
ofthecompetentauthorityorthenexthigherauthority,asthe case may be.
16.Suchretrenchment,asalreadynoticed,underSection 83 of the Act is
with the approval of the
competentAuthorityorthenexthigherAuthority,asthecasemaybe. Section
79 of the Act dealing with dismissal,
removalorreductioninrankorsuspensionoftheemployeesofprivate
institutions, however, has no application as this isnot a case of
dismissal, removal or reduction in rank nor isit a case of
suspension. 17. The 1st question in this context is whether a Writ
would lie against a private educational institution.InVasavi
College of Engineering vs. A.Suryanarayana[3],a Division Bench of
this Court observed that a writ
petitionismaintainableagainstrecognizedprivateeducationalinstitutionswhethersuchinstitutionswereadmittedtogrant-in-aid
or otherwise. The Division Bench opined
thatateacherofsuchaninstitutioncouldseekappropriateremedythroughawritpetition.
Therefore,thereisnodoubt that these writ petitions against the
1standthe2ndrespondents are maintainable.
18.RegardingtheconditionenvisagedbySection83 of the Act that prior
approval of the competent
Authorityisneededtoretrenchanemployee,itwasheldinE.UDDANDARAMAIAHvs.V.R.S.ANDY.R.N.COLLEGE[4]thatpriorapprovalofthecompetentAuthorityisaconditionprecedentforterminatingtheservices
of regular or temporary employees. 19.In
R.Akkulaiahv.GovernmentofA.P.[5],theservices of a teacher working
in an unaided section
wereterminatedwhenthesectionhasbeencloseddownbythemanagement.
TheRegionalJointDirectorofSchoolEducationsetasidetheterminationorderaspriorapprovalwasnotobtainedfromthecompetentAuthorityforsuchtermination.
TheviewoftheRegionalJointDirectorwasconfirmedbytheHighCourtholdingthatinview
of Section 83 of the Act, retrenchment/termination ofthe services
of a teacher can be with the prior approval ofthe competent
Authority only.
20.InW.P.No.14093of1999,alearnedsingleJudgeofthisCourtpassedorderson17-4-2008thattheterminationoftheservicesofaJuniorLecturerinCivicswithoutfollowingtheprocedurerequiredunderSections79
or 83 of the Act is arbitrary and illegal. This order
wasconfirmedbyaDivisionBenchofthisCourtthroughorders dated
17-7-2008 in W.A.No.723 of 2008.
21.Thelearnedcounselforthepetitionerpointedoutthatthe2ndrespondent-College,infact,approachedthe
competent Authority for permission and failed to obtainpermission
from the competent Authority.The 2nd respondent-College herein
filed W.P.No.16229
of2008seekingadirectiontothecompetentAuthoritytograntapprovalfortheretrenchmentofthepetitionerherein.
Thewritpetitionwasdisposedofdirectingthecompetent Authority to
consider the representation of the2nd respondent-College herein to
accord
approval.The2ndrespondent-College,however,wasnotgrantedanyapprovaltoretrenchthepetitioner.
Thelearnedcounselforthepetitioner,inthisbackgroundconsideredthattheretrenchmentofthepetitionerisinviolationofSection
83 of the Act and is not permitted. 22. The learned counsel for the
respondents 1 and 2pointedoutthattherewasnovengeanceonthepartofthe
respondents 1 and 2 to victimize the petitioner.He submitted that
the petitioner was a Lecturer in Teluguand that there was no
student ready to take Telugu as
asubject,somuchso,thereisnoneedtocontinuethepetitioner as a
Lecturer in Telugu. He pointed out that noone was appointed by the
management in the place of thepetitioner as a Lecturer.He also
submitted that during theperiod of probation, commencing from
11-01-1999, the petitioner could be removed without priorNotice.
HealsopointedoutthatOsmaniaUniversitydidnotapprovetheappointmentofthepetitionerbutmerelynoted
the appointments of various Lecturers including thepetitioner. The
proceedings of Osmania University
dated22-9-1999notingtheappointmentsofvariousteachingstaff including
the petitioner were in response to the
letterofthePrincipaloftheCollegedated15-6-1999.
Therespondents1and2cannotnowcontendthatOsmaniaUniversity did not
approve the appointments and that
theservicesofthepetitionerthereforeareliabletobeterminated. 23. The
learned counsel for the respondents 1 and 2also contended that the
petitioner did not avail
alternativeremedyandthathe,therefore,isnotentitledtoseektherelief
through a writ petition.
HereferredtoSection80oftheAct,whichprovidesappealfromanorderofpunishment
imposed by a private management against itsemployee.Section 81 of
the Act provides for an appeal toGovernment.Section 89 of the Act
is a general provision of appeal.Section 90 of the Act
dealswithrevisiontoGovernment.
Itiscontendedthatthepetitioner,whodidnotavailalternativeremedy,cannotinvokethewritjurisdiction.
Thelearnedcounselfortherespondents1and2contendedthattherespondents1and
2-Institutes are unaided minority
institutes.Bethatasitmay,whenthe1strespondent-ManagementdidnotfollowSection83oftheAct,therespondentscannotinsistthatthepetitioneroughttohavepreferredalternativerelief.
Further,admittedlytheunofficialrespondentsdidnotpassordersunderSection79(1)proviso
but passed orders under Section 83 of the Act
byretrenchingtheservicesofthepetitioner.
Consequently,Section83oftheActandthedecisionsreferredtosquarely
apply to the facts of the case.The
retrenchmentofthepetitionerisviolativeofSection83oftheAct;thepetitioner
therefore is entitled to seek for reinstatement.
24.However,whetherthepetitionerisentitledtoback wages is a question
that is to be considered.In R.Akkulaiah (5 supra), it was observed
that
aretrenchedteacherwouldbeentitledtobackwagesifhecouldestablishthathewasnotgainfullyemployedelsewhere
during the period he was out of service.The respondents claimed
that the petitioner was gainfullyemployed during the period he was
out of
service.Thequestionofthepetitionerbeingnotentitledtobackwages does
not arise since the petitioner obtained interimdirections and
continued to be in service.
Consequently,thequestionofbackwagesdoesnotariseforconsideration in
this case. 25. Accordingly, both the writ petitions are allowed.
TherespondentsaredirectedtoimplementthePayScales of 2004 and 2009
and subsequent Pay Scales, if any, to the petitioner together with
arrears.Theretrenchmentofthepetitionerthroughordersdated06-7-2006issetaside.
Asthepetitionerhasbeencontinuinginservice,heisentitledtowagesduringtheperiod
of his employment. If the respondents 1 and 2
didnotextractworkfromhim,itwasattheirperilonly.
Consequently,theimpugnedretrenchmentorderinthe2nd writ petition is
set aside. The writ petitioner is entitledto wages during the
period he continued to be in service, ifnot paid already.The
arrears and wages shall be clearedwithin 8 (eight) weeks from the
date of receipt of a copy ofthisorder.
Nospecialordersarepassedregardingthereinstatementofthepetitionersincetheretrenchmentofthe
petitioner was stayed through an interim order
leadingtothecontinuationofthepetitionerinservice.
Nocosts._____________________Dr. K.G.SHANKAR, J.12th December,
2013.Ak Note:-L.R. Copy to be marked.(B/o)Ak HONBLE Dr. JUSTICE
K.G.SHANKAR Writ Petition No.25526 of 1999andWrit Petition No.13945
of 2006 (Common Order) 12th December, 2013.(Ak)[1] AIR 1987 SC
311[2] 2006 (2) ALD 251[3] 1991 (3) ALT 335[4] 1995 (2) An.W.R.
146[5] 1996 (3) ALD 8
