Andhra Pradesh High Court - Amravati
K.Sreeramamurthy And 84 vs The State Of Ap., Rep By Its ... on 8 April, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.41905 of 2015
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue an order direction or writ more particular one in the nature of Writ of Mandamus to declare the action of the respondents in not sanctioning the notional increments, pension and other benefits from the initial date of appointment of the petitioners, as illegal, improper, unjust, arbitrary and further declare the Memo Rc.No.Accts-III/CPS/4426/2014, dated 12.10.2015 introducing the Contributory Pension Scheme (CPS) to the petitioners and deducting the amounts under the said scheme is illegal, improper, unjust and arbitrary and to further declare that all the petitioners are entitled to count their initial service rendered as contract teachers from the date of their initial appointment as regular by granting notional increments and service benefits for the purpose of seniority and pension with all consequential benefits and pass such other order or orders......."
2. Brief facts of the case are that, the petitioners were appointed as contract Teachers in various subjects under the control of the Andhra Pradesh Social Welfare Residential Educational Institutions' Society (for short 'APSWREIS') i.e., the 2nd respondent Society was established in the year 1984, which is meant for providing 80% of the seats to the Scheduled Caste students and to provide better educational facilities to the downtrodden students.
While so, in the year 1996, the practice of appointment of regular teachers has been changed and introduced a new rules, namely the Andhra Pradesh Social Welfare Residential Institutions Society Teaching Staff (Conduct) Rules, 1996, 2 through which all appointments to teaching posts in the 2nd respondent institution including various categories through the Society Standing Order No.40 of 1996, dated 11.12.1996. As per the said rules, a notification has been issued for recruitment of teachers on contract basis followed regular recruitment process. The petitioners were appointed as teachers in different faculties on contract basis from 1996 to 2003. As per the Standing Order 3 of 1998, dated 6.6.1998 the petitioners were provided with monthly remuneration.
While the matter stood thus, the 1st petitioner has filed W.P.No.13873 of 2003 before this Court for regularization and this Court granted interim order and after filing of counter, the same was made absolute directing the respondents not to discontinue the petitioners till the disposal of writ petition and further directed that the recruitment contemplated under the notification dated 30.06.2003 may go on but the same shall not be finalized until the said writ petition is disposed of. Aggrieved by the said interim order, the respondents herein filed an appeal W.A. No.350 of 2004 before a Division Bench of this Court. The same was disposed of vide order dated 23.02.2004 with the following direction:
"Therefore, it is but appropriate to direct the government to consider the proposal submitted by the Society for regularization of contract teachers against the existing vacancies by suggesting a formula or scheme and such a decision may be taken within three months from the date of receipt of a copy of this order and the decision may be communicated to the Society so as to avoid unnecessary hardship to teachers employed on contract basis. With this 3 modification in the impugned order, the appeal stands disposed of."
In spite of the above order, the respondents did not choose to formulate any scheme to regularize the services of the petitioners.
It is submitted that the Government issued G.O.Ms.No.66, Social Welfare (RS.II) Department, dated
25.8.2006 permitting the 2nd respondent to go for regular recruitment of 782 regular posts of teaching staff vacant in the regular schools on regular basis instead of contract basis. Later, the 1st respondent has issued G.O.Ms.No.59 dated 10.08.2007 to regularize the services of 1243 contract teachers working from various dates starting from 1996 onwards up to 2002-2003. However, the 2nd respondent had issued fresh appointment to the petitioners on regular basis. Aggrieved by the same the petitioners have made several representations. But there is no response.
The main grievance of the petitioners is that the respondents herein have to provide notional service benefits from the date of their initial appointment till the regularization orders issued by them and the services rendered by them from the date of initial appointment as contract teachers has to be counted for the purpose of pension, seniority and other service benefits. As the Government Orders are extended the notional benefits for unqualified persons appointed as Teachers and also to the teachers qualified appointed on apprentice, these petitioners are also entitled for similar benefit. 4
The petitioners specifically contended the Apex Court in State of Punjab and others v. Harbans Lal considered similar issue that the new Contributory Pension Scheme was introduced by the Government of India with effect from 01.01.2004 for the new entries to the Government Service. Adopting the said scheme the State of Punjab issued a notification on 2.5.2004 amending the Punjab Service Rules. While interpreting the said scheme, the Hon'ble Apex Court further held that it is only prospective but not retrospective thereby to the persons those who have been appointed prior to 01.01.2004 are governed by the Old Pension Scheme but not the new CPS. All the petitioners are similarly and identically placed persons. Therefore the said judgment of the Hon'ble Apex Court will squarely apply to this case.
Though the petitioners made several representations for regularization of services by granting notional increments and service benefits for the purpose of seniority and pension with all consequential benefits, the respondents have not taken any action. Hence, the present writ petition.
3. Counter affidavit is not filed by the respondents.
4. Heard Sri K. Rama Mohan, learned counsel appearing for the petitioners and Sri L.V.S. Naga Raju, learned Standing Counsel for APSWR appearing for respondent No.2 and learned Government Pleader for Services-I appearing for the respondent No.1.
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5. During hearing, learned counsel Sri K. Ram Mohan contended that the petitioners are have all joined the service prior to 01.09.2004 and were governed by the Pension Scheme as applicable in accordance with A.P. Revised Pension Rules, 1980. He also relied on the judgment in W.P.No.13422 of 2019 filed by the Teachers of Andhra Pradesh Tribal Welfare Residential Educational Institutions Society Gurukulam before this Court and the same was allowed by a learned Single Judge of this Court vide order, dated 21.12.2021, declaring that the employees whose services were engaged on contract basis prior to commencement of Contributory Pension Scheme and discharging their duties without interruption of duty are entitled to the benefit of Old Pension Scheme, while holding that the Contributory Pension Scheme cannot be applied to those employees.
6. Learned counsel further submits that at the time of admitting the present writ petition, the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh vide order dated 29.12.2015 in WPMP No.54040 of 2015 has granted interim order suspending the Memo in Rc.No.Accts-III/CPS/4426/2014, dated 12.10.2015 so far as the petitioners are concerned in deducting the monthly contribution towards the new pension scheme (CPS) pending disposal of the writ petition. However, the respondents have not complied with the above orders, the petitioners have filed Contempt Case in C.C.No.895 of 2017 and the same is pending for adjudication.
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7. Whereas, Sri L.V. S Raju, learned Standing Counsel for respondent No.1, contended that, there is a break in service of the petitioners and therefore, they are disentitled to claim the benefit of Rule 17 of Rule, 1980. In view of the specific contention, it is apposite to extract Rule 17 of Rules, 1980.
"(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a regular capacity in a pensionable establishment without interruption of duty, may opt either (a) to retain the Government contribution in the contributory Provident Fund with interest thereon including any other compensation for that service; or
(b) to agree to refund to the Government the monetary benefits referred to in clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
(2) The option under sub-rule (1) shall be communicated to the Head of Office or to the Audit Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.
(3) If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.
8. On a close analysis of Sub-Rule (1) of Rule 17 of the Rules, 1980, i.e., the service of a contract employee for specified period whose services were subsequently regularized in the pensionable establishment without interruption of duty are entitled to exercise options, the word "without interruption of duty" assumes greater importance to decide the real controversy between the petitioners and respondents, as the respondents contended that their services were terminated at 7 the end of one academic year and re-engaged their services on commencement of next academic year, on need basis.
9. As per Merriam-Webster Dictionary, meaning of the word "interruption‟ is defined as follows:
a) An act of interrupting something or someone or the state of being interrupted;
b) a stoppage or hindering of an activity for a time;
c ) something that causes a stoppage or break in the continuity of something.
10. Thus, to claim benefit of Rule 17 of Rules, 1980, it is for the petitioners to prove that there was no interruption of duty in their service from the date of their appointment on contract basis for specified period and continuing on contract basis by the date of commencement of C.P.S on 01.09.2004 and their regularization thereafter.
11. The petitioners satisfied the requirement i.e. their appointment on contract basis and regularization of their services subsequent to commencement of C.P.S on 01.09.2004. However, the third requirement which is the trump card in the present case is that, there shall be "no interruption of their duty" after appointment on contract basis till their services are regularized.
12. The petitioners have not placed on record the contract/agreement by which they were appointed to find out the exact period of interruption from duty, either as on the date of C.P.S came into force or on the date of their regularization. At the same time, the respondents did not file 8 even the copies of agreements/contract by which they were appointed to decide whether the petitioners' appointment starts from the date of commencement of one academic year and terminated at the end of same academic year. In those circumstances, it is difficult for this Court to declare that these petitioners are entitled to claim benefit of old pension scheme which was in force by the date of their appointment on contract basis without verifying agreement/contract.
13. In any view of the matter, it is clear from the law declared by the Division Bench of High Court of Himachal Pradesh v. State of Himachal Pradesh1, where a similar Rule i.e. Rule 17 of Rules, 1980, was incorporated in the Pension Rules of Himachal Pradesh.
In view of the controversy, a little narration of the facts in High Court of Himachal Pradesh v. State of Himachal Pradesh (referred supra) is required. In the said case, the petitioner was appointed as Trained Graduate Teachers against the vacant posts of Junior Basic Teachers (JBT). He was appointed on contract basis on 07.08.1997 on fixed monthly honorarium and his services were regularized on 10.07.2006 w.e.f. 01.01.2006. Out of the selected candidates, one person by name Joga Singh challenged the application of Contributory Pension Scheme and the matter went up to Hon‟ble Supreme Court and the Hon‟ble Apex Court held that, he was entitled to benefits of Old Pension Scheme, reckoning the service from the date of appointment on contract basis.
1 CWP No.241/2019 dated 10.01.2020 9 Neither the petitioners nor Joga Singh or other similarly situated persons were appointed as Vidya Upasaks after respective dates of regularization of their services in 2006 & 2007 and they were held entitled by the State for pension under CCS (Pension) Rules, 1972, in view of the First Amendment Rule, 2003 amending CCS (Pension) Rules, 1972 for State of Himachal Pradesh. Under this amendment, the persons appointed in the State of Himachal Pradesh after 15.05.2003 were not entitled to pension under CCS (Pension) Rules, 1972. The petitioners as well as Joga Singh and other similarly situated Vidya Upasaks were treated as JBTs appointed in 2006 and 2007 respectively i.e. after the cut off date of 15.05.2003, therefore, they were not entitled to pension under CCS (Pension) Rules, 1972. When Joga Singh and other similarly situated Vidya Upasaks approached High Court of Himachal Pradesh, the Court held that, JBTs who approached the Court are entitled to claim the benefit of Rule 17 of Himachal Pradesh Rules. The matter went up to Apex Court in SLP (c) No.183/2016 and the same was confirmed by the Hon'ble Apex Court. Subsequently Review Petition No.274/2017 was dismissed on 2.3.2017. It was after the dismissal of the SLP that cause of action virtually arose in favour of the petitioner, as his juniors (originally -Vidya Upasaks) were held entitled to count their past service for purpose of pensionary benefits under CCS (Pension) Rules, 1972 as well as for annual increments. The petitioner thereafter preferred Original Application No.3796 of 2018, 10 which was disposed of by directing the competent authority to grant the benefit in Joga Singh & others v. State of Himachal Pradesh 2 judgment to the petitioner in case he was similarly situated. The competent authority rejected petitioner's representation on 8.7.2019 on the ground that petitioner is not similarly situated to Joga Singh. But, the Court by noting the principle laid down in Prem Singh v. State of Uttar Pradesh3 concluded that the petitioners are also entitled to the benefit of Joga Singh‟s judgment being Vidya Upasaks, adverting to Rule 17 of Himachal Pradesh Pension Rules. Finally, in the penultimate paragraph of the judgment, the Court held as follows:
"In view of above discussion, the service rendered by the petitioners on contractual basis deserves to be counted towards 1972 and for annual increments.
The qualifying service for pensionary benefits under CCS (Pension) Rules Accordingly, these writ petitions are allowed. The contractual service rendered by the petitioners as Junior Basic Teachers shall be counted towards qualifying service for the purpose of pension under CCS (Pension) Rules, 1972 as well as for annual increments."
Based on the judgment of Joga Singh case (referred supra), Himachal Pradesh High Court concluded that the petitioners therein were entitled to claim the benefit under Rule 17, which is in pari materia to Rule 17 of the Andhra Pradesh Revised Pension Rules, 1980. Hence, persuaded by the judgment of the Division Bench of High Court of Himachal Pradesh v. State of Himachal Pradesh (referred supra), it can safely be concluded that the petitioners herein are also entitled 2 Execution Petition No.12 of 2019 dated 01.08.2019 3 (2019) 10 SCC 516 11 to the benefit of Joga Singh case (referred supra), since the petitioners are similarly situated persons and Rule 17 of Himachal Pradesh Rules is identical to Rule 17 of Andhra Pradesh Revised Pension Rules, 1980, without any hesitation, but subject to proof of continuity in service.
14. Though the contention of the petitioners that they were appointed on contract basis before commencement of C.P.S i.e. during 2000 to 2003, they did not place any record. But in view of the contention that their services were engaged on need basis, which starts in one academic year and ends by the next academic year, thereby there may be a gap for one reason or the other, either the petitioners or the respondents did not place on record those agreements either to prove that the petitioners served without interruption in Gurukulam from the date of their appointment of the petitioners or to prove that there is an intermittent gap between two academic years; thereby there is a break in service. Consequently, it cannot be treated as continuity in service by the respondents. In the absence of any document produced before this Court, it is difficult to direct the respondents to apply Rule 17 to the case of these petitioners.
15. In view of my foregoing discussion, I declare that the employees whose services were engaged on contract basis prior to commencement of Contributory Pension Scheme and who are discharging their duties without interruption of duty, are entitled to the benefit of Old Pension Scheme, while holding 12 that the Contributory Pension Scheme cannot be applied to those employees. In those circumstances, the petitioners are directed to submit their applications for consideration of their entitlement by applying Rule 17 of the Andhra Pradesh Revised Pension Rules, 1980 and to claim benefit of Old Pension Scheme, the petitioners shall annex copies of their contract/agreement of service or any other document like salary slips, establishing their continuity in service, from the date of their joining till their services are regularized. On such production, the concerned authority is directed to consider the case of the petitioners, in view of the law declared by Division Bench of High Court of Himachal Pradesh v. State of Himachal Pradesh (referred supra) and extend the benefit of Old Pension Scheme to those employees who are able to establish that they are in service as on date of amendment and continuing in service. Consequently, the Memo in RC.No. Accts-III/CPS/4426/2014, dated 12.10.2015 is hereby set aside.
16. With the above direction, writ petition is disposed of. No costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 8 -04-2022 Gvl 13 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.41905 of 2015 Date : 8 .04.2022 Gvl