Andhra HC (Pre-Telangana)
K.C. Venkateswarlu And Ors. vs Government Of Andhra Pradesh, ... on 10 June, 1997
Equivalent citations: 1998(4)ALD174, 1997(5)ALT121
ORDER
1. The petitioners are working as Lecturers, Senior Assistants, Junior assistants/Record Assistants in Dr. L.B. Junior College, Visakhapatnam. The said Institution was started in 1978 and it was running without the aid of the Government. By G.O. Ms. No.96 dated 14-3-1991, the said Institution was admitted to grant-in-aid with effect from 16-4-1990. The petitioners are challenging Clause 5 of the G.O, which reads that "all the teaching and non-teaching posts shall be admitted to aid at the minimum of the respective pay scale" on the ground that it is violative of Articles 14,16 and 21, and the principle of equal pay for equal work. The petitioners demonstrated that by virtue of Clause 5 of the G.O, a teacher who was drawing a salary of Rs.3,707/- prior to the admission of the Institution to grant-in-aid would be drawing Rs.3,259/- after the admission of the Institution to grant in aid. A teacher of the same service employed in the Government College would be drawing Rs.3,707/- whereas the petitioners employed in the Institution would be drawing less than the scale of pay admissible to the teachers working in the Government Colleges. Thus there is violation of the doctrine of equal pay for equal work. It is also submitted that by virtue of the said Clause in the G.O., the past service is forfeited without giving any opportunity of hearing and for no fault of theirs and therefore, the said clause violates the principles of natural justice.
2. In the counter-affidavit filed by the respondents, it is stated that after the institution has accepted the G.O. and received the grant, the petitioners after lapse of about two years filed the present writ petition, therefore, they are not entitled for any relief.
3. At the time of the admission of the institution to grant-in-aid, the petitioners arc allowed minimum of time scale on par with others as the policy of the Government was taking into .consideration the service of the petitioners from the date of the admission of the Institution to grant in aid i.e. with effect from 16-4-1994. It is also stated that it is the look out of the management to pay salaries and the Government cannot be made liable for the loss if any to the petitioners by virtue of the admission of the institution to grant-in-aid. The grant-in-aid is provided taking into account the economic capacity of the Government and the recommendations of the Grant-in-aid Committee. It is also stated that the service of the petitioners is to be counted as regular service i.e. aided service only with effect from the date of their admission to the grant-in-aid i.e. 16-4-1990. The service rendered prior to 16-4-1990 cannot be taken into account for purpose of fixation of scale of pay as it was purely unaided and the pay cannot be protected. In view of the above, the petitioners are not entitled for any relief.
4. The question, therefore, is whether Clause 5 of the G.O. is violative of the doctrine of equal pay for equal work and whether the petitioners are entitled for the benefit of the service prior to the admission of the institution to grant-in-aid for purpose of fixation of their pay.
5. Before considering whether Clause 5 of the G.O. violates the principle of equal pay for equal work it is necessary to consider whether Clause 5 of the G.O. deprives the petitioners their un-aided service for purpose of fixing their pay scale after the admission of the Institution to grant-in-aid. It is not disputed that the petitioners for example the first petitioner if he had been the employee of Government College, he would be drawing a pay of Rs. 3,707/- in May, 1990 /. e., on which date the petitioners' Institution was admitted to grant-in-aid. By virtue of Clause 5 of the G.O. the scale of pay of the first petitioner was fixed at minimum of the scale of pay. In other words, the first petitioner would be given the minimum pay in the scale of pay i.e. he would be starting at Rs.1,550/- with 38% D.A. while they were drawing the minimum of pay of Rs.2,230/- + 35 with 23% D.A. i.e. after the institution was admitted to grant-in-aid, the pay scale was reduced by Rs. 790/-. The reduction of pay scale was on account of the fact that their service in the unaided institution was not continued. The first petitioner's service prior to the admission of the institution to grant-in-aid was forfeited for no fault of the petitioner without giving an opportunity before forfeiting the service in an unaided post reducing the basic pay. Hi this context, the observations of the Supreme Court in Bhagavan Shukla v. Union of India, are relevant. It was observed that:
"The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard."
The observation made above squarely applies to the facts of this case. It is no doubt true that the reduction in the basic pay is on account of statutory order. However, the feet remains that the reduction in basic pay forfeiting the services in an unaided post is not for any fault of the petitioners but on account of grant-in-aid given to the institution.
6. The next issue to be considered is whether Clause 5 of the G.O. is in violation of principle of equal pay for equal work. Sections 42 to 46 of the A.P. Education Act, 1982 provides for grant-in-aid. Section 42 says the Government has set apart a sum for giving grant-in-aid within the limits of its economic capacity. Section 43 provides for the authorities which may sanction grant and grant shall be made subject to certain conditions to be specified by the Educational institutions. Section 84 of the Act provides that an employee in a private institution shall be paid in the prescribed manner. G.O.Ms.No.29 dated 5-2-1987 was issued in exercise of the power conferred under Sections 20 and 21 read with Section 99 of the A.P. Education Act, 1982. These Rules are called A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987. Rule 7 provides for staff pattern. Rule 7 sub-rule (2) clause (b) provides that the appointment of teaching and non-teaching staff in the Government educational institutions shall be by way of recruitment through the A.P. Public Service Commission or as per the procedure prescribed by the Government from time to time. Rule 7 of sub-rule (2) Clause (c) provides for the appointment of non-teaching staff in Private Educational Institutions and it should be by the Selection Committee from amongst the candidates sponsored by the Employment Exchange or through News Paper advertisement. Rule 7 Sub-Rule (4) is provided for payment of salaries to staff it says the educational agency of any private institution shall pay salaries to its staff as per the Government scales of pay and by following such procedure as may be prescribed by Government form time to time, in this regard.
7. From the above it follows that the Government has to set apart depending on its economic capacity in the budget certain amounts for providing grant in aid and grant in aid will be given to Private Educational Institutions subject to fulfilment of conditions laid down by the Government and the staff of the Private Educational Institutions have to be selected by the Staff Selection Commission or by the A.P. College Service Commission in accordance with the procedure prescribed by the Government. It also provides that the salaries of the staff or private educational institutions are as per the Government scales of pay. Therefore, the petitioners who arc employed in an unaided college are entitled to the Government scales of pay irrespective of the fact whether the institution is aided or unaided. Accordingly perhaps the institution was paying the scales of pay as indicated in the above paragraphs.
8. Now I will consider whether the reduction in basic pay on the admission of the institution to grant in aid would amount to violation of the doctrine of equal pay for equal work. In Haryana State Adhyapak Sangh v. State of Haryana, jfthe employees of the private institution admitted to grant in aid were before the Supreme Court complaining that the State Government has not implemented the directions issued by the Supreme Court in . It was contended that the observations made by the Supreme Court in the said judgment namely were not to the effect that the teachers of the aided Schools must be paid same pay scales and Dearness Allowance as the Teachers in the Government Schools. The said argument was repelled and it was observed that:
"these observations leave no scope for doubt that this Court has directed that the teachers of aided schools must be paid the same scales of pay and dearness allowance as teachers in Government schools and that the said payment must be made for the entire period claimed by the appellants and the petitioners in these cases."
The said decision was followed in State of Haryana v. Rajpal Sharma, . The question involved in this judgment is whether the employees of a private aided institution would be entitled to the same scale of pay and privileges as are available to their counter parts in Government Schools. Following the judgment in Haryana State Adyapak Sangh, (supra) it was held that the teachers employed iii aided schools shall be paid the same salary and Dearness allowance as is paid to the teachers employed in Government Schools. In State of Himachal Pradesh v. H.P. State Recognised & Aided Schools Managing and others, 1995 (2) SLR 725 while reiterating the principle laid down in Haryana State Adyapak Sangh it was observed that:
"The aided Schools teach the same syllabus and curriculum, prescribe the same books and courses as per Government directions and prepare the students for examinations for which the students studying in Government Schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. The fees levied and concessions allowed are strictly in accordance with the instructions issued by the Education Department of the State Government from time to time. The Managing Committee of aided Schools are approved by the State Government and two members of the Committee are appointed by the teachers including disciplinary proceedings and award of punishment etc. are governed by the Rules framed by the State Government.
It is thus obvious that the State Government has a deep and pervasive control on the aided schools. The Government schools and the aided schools-specially after the Kothari Commission Report have always been treated at par. It has been authoritatively laid down by this Court that the teachers working in the aided schools are entitled to the same salaries and allowances as are being paid to the teachers in the Government Schools.
It is, therefore, late in the day to say that the teachers in the aided schools are not entitled to parity in the matter of salary, allowances etc. with their counterparts in the Government Schools. The question, for our consideration, however, is whether the State Government or the management is to meet the consequent expenditure.'' Therefore, the applicability of principle of equal pay for equal work depends upon the qualification prescribed to the post, the method of selection or mode of recruitment to the post the nature of responsibility functions and duties attached to the post the control exercised by the authority whether it is the Government or any other authority. Undoubtedly the petitioners discharge the same functions and responsibilities and duties as the teachers in the Government Colleges, the method of recruitment is controlled by the Government and it should be in accordance with the rules framed by the Government the disciplinary control is indirectly vested with the Government. Therefore, the petitioners are entitled for the pay admissible to the Government College employees. In the light of the above, the petitioners are entitled to the same scale of pay to which their counter parts in the Government institutions are entitled to.
9. The learned Counsel for the respondents submitted that the Government cannot provide the amount which is sufficient to meet the entire expenditure for the purpose of payment of salaries to their employees. The object of providing the aid is only to help the institution in meeting the expenditure incurred for the maintenance of its institution which includes payment of salaries to its staff. Therefore, the grant which is given if falls short of salaries to be paid to its employees, it is for the Management to make good the deficiency and therefore, the petitioners cannot challenge Clause 5 of the G.O. It is pointed out that the question is whether Clause 5 violates the doctrine of equal pay for equal work and also violates the principles of natural justice which I have already answered in the earlier paragraphs and not whether the management has to make good the deficiency.
10. The learned Counsel contended relying on State of UP v. J.P. Chaurasta, AIR 1989 SC 90 that :
"the question whether two posts are equal or should carry equal pay depends upon several factors. It docs not just depend on either nature of work or volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but the quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration."
The observation of the Supreme Court relied on by the learned Counsel for the respondent is irrelevant to the facts of the present case. That was a case where there was disparity in the pay scale of Bench Secretaries and the Section Officers of the High Court. The Bench Secretaries were on a higher pay scale than that of Section Officers. In that context the above observations were made upholding the superior claim of Bench Secretaries over the Section Officers having regard to the functions performed by the Bench Secretaries and the Section Officers.
11. The judgment in K. Vasudevan Nair v. Union of India, , is also irrelevant to the facts of the present case. The Supreme Court upheld the disparity in pay scales between the Section Officers Audit wing and the Sections Officers Accounts wing on the ground that the responsibilities of the Audit wing are entirely different than the Section Officers of Accounts wing.
12. In the judgment of the State of Madhya Pradesh v. Pramodh Bharatiya, the Supreme Court held that the lecturers working in higher secondary schools in the State of Madhya Pradesh and the lecturers working in the Technical Schools though the qualifications prescribed for the lecturers in the Higher Secondary schools and the non-technical lecturers in Technical Schools were the same and service conditions of both the categories of lecturers were same and the status of the Schools was also the same, yet the functions and responsibilities of both categories of lecturers were not similar as there is no allegation to the effect that they were similar and it is not enough to say that the schools are of the same status not sufficient to say that the service conditions are similar and that what is more important and crucial is whether they discharge similar duties, functions and responsibilities. In the light of the above the disparity in the scales of pay was upheld. The observations referred to above are sufficient enough to point out that the said judgment is not relevant to the facts of the present case.
13. Similarly in Harbans Lal v. State of Himachal Pradesh, it was observed:
"A claim for equal pay can be sustained only if the impugned discrimination is within the same establishment owned by the same management. A comparison cannot be made with counter parts in other establishments with different management or even in establishments in different geographical locations, though owned by the same master. Hence, the petitioners, who are employees of the Himachal Pradesh State Handicraft Corporation, a Company incorporated under the Companies Act, 1956, cannot claim wages payable to their counter parts in government service."
The above judgment is not relevant to the facts of the present case. In Sher Singh v. Union of India, the question involved is whether the employee of the Library Staff in the Delhi University are entitled to the parity of wages along with the teaching staff. It was held that:
"There is no rationale or any justification in the claim of parity between the teaching staff and the library staff in Delhi University and its colleges for the simple reason that the two sets of employees belong to different categories of employees who stand on a different footing. The nature of duties work load, experience and responsibilities of the two sets of employees in question are totally different from each other. The teaching staff has to do some research work, deep study in their respective subjects and to make preparations for the daily lectures in the class rooms and other academic work while this is not so in the case of library staff. The experience of Library staff is totally different from the one which is required for the teaching staff. If the Government as a matter of policy had equated the Library staff.....
The Courts would be slow in interfering with matters of government policy except where it is shown that the decision is unfair, mala fide or contrary to any statutory directions. There will be no justification for the Court to interfere with the policy of the Government merely on the ground of change in the policy."
The judgment referred to above is not relevant to the facts of the case. It is pointed out that there cannot be any quarrel with the proposition that it is an expert body like Pay Commission to determine the equation of posts as they are the best judges to evaluate the duties, responsibilities and functions and if any such evaluation is made, Courts should be slow in interfering with the same. As pointed out in the earlier paragraphs the petitioners are discharging the same functions, responsibilities, duties as their counter parts in the Government Colleges are dis-charging. The all pervasive control with reference to recruitment, Disciplinary and administrative is vested in the Government directly and also indirectly. Therefore, the question of evaluation of functions, responsibilities, duties etc. is irrelevant in the facts and circumstances of the present case. Hence, the judgment is irrelevant.
14. State of Punjab v. Om. Prakash Kaushal, is also irrelevant to the facts of the present case as it was held that Executive instructions relating to scales of pay to the employees of the private aided institutions have given parity with Government teachers only in respect of pay scales and Dearness Allowance and the other conditions of service relating to Government teachers were not extended to the respondents and therefore, the incentives provided in 1960 instructions in the shape of advance increments to the Government teachers who improved their educational qualifications could not be automatically extend to the respondents.
15. State of U.P. v. Ramashraya Yadav, 1996 (2) Supreme Today 434 is also not relevant to the facts of the present case as it deals with pay of regular investigator-cum-Computer.
16. It follows from the above that Clause 5 of the impugned G.O. is violative of not only the doctrine of equal pay for equal work but also violative of principles of natural justice. In view of the above, a writ of mandamus shall be issued directing the respondents to count their service in the unaided institution prior to 16-4-1990 for the purpose of fixation of their scales of pay. The respondents are directed to revise scales of pay within three months from the date of receipt of a copy of tills order.
17. The writ petition is accordingly allowed with costs. Advocate's fee is Rs.2,000/-.