Andhra HC (Pre-Telangana)
T. Zakraiah And Ors. vs A.P.S.C. Co-Operative Finance ... on 3 October, 2001
Equivalent citations: 2001(6)ALD549, 2001(6)ALT514, (2002)IVLLJ116AP
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. All these Writ petitions involving similar questions were taken up for hearing together and are being disposed of by this common judgment.
2. The petitioners in all these writ petitions are working either as NMR Non-Technical Work Inspectors or Attenders in the District Scheduled Co-operative Society Ltd., Guntur District, Guntur.
3. The petitioners 1 and 3 in WP No. 16236 of 2000 were appointed as Non-Technical Inspectors w.e.f. 1-9-1991 and 1-2-1992 respectively while the 2nd petitioner was appointed as attender on 1-4-1991. After completion of five years' of service, they made a representation to the respondents for regularisation of their services as per G.O. Ms. No. 212 dated 22-4-1994. As their requests were not acceded to, they filed WP Nos. 6142/98, 7440 of 1998 and 6810 of 1998 respectively and a learned single Judge of this Court upon noticing the decision of the Apex Court in District Collector v. M.L. Singh, , directed the respondents to regularise the services of the petitioners. It was also directed that they be paid wages on par with the permanent employees of that category subject to the fulfilment of other conditions laid down in G.O. Ms. No. 212. It was, however, observed:
However, it is made clear, as the condition No. 6 of the said GO. If there is no vacancy in the parent department, his case may be considered for absorption wherever the vacancy is available.
4. Pursuant to or in furtherance of the above orders of this Court, the 2nd respondent considered the cases of the petitioner and by reason of the proceedings dated 30-11-1998 their claim for regularisation of the services was rejected on the ground that there were no sanctioned posts. However, by the very same proceedings the petitioners were granted regular scale of pay in the scale of Rs. 1375-2375 with effect from 1-12-1998. Subsequently, the 2nd respondent issued the impugned proceedings dated 29-8-2000 withdrawing the orders dated 30-11-1998 so far it has allowed regular time scale of pay to the petitioners purported to be under the instructions of the 1st respondent dated 4-8-2000 on the ground that as the services of the petitioners are not regularised, they were not entitled to regular time scale of pay and directed that the petitioners be paid daily wages under Minimum Wages Act. Aggrieved by the said orders they filed WP No. 16236 of 2000.
5. Subsequently, questioning the orders dated 30-1-1998 rejecting the case of the petitioners for regularisation of services, they also filed WP No. 20953 of 2000. It was also their case that petitioners 2 and 3 were not taken to duty with effect from 5-9-2000 on the ground that they were transferred to the office of the 4th respondent as per the orders dated 29-8-2000 and even the 4th respondent also did not allow them to join duty. Therefore, they sought for a direction upon the respondents to regularise their services and absorb them in any of the vacancies available in any other departments or District Offices under the control of the District Collector, Guntur.
6. The petitioner in WP No. 16498 of 2000 was appointed as NMR Non-Technical Work Inspector w.e.f. 1-11-1992. He also filed WP No. 4263 of 1998 and obtained similar directions for regularisation of his services as in the case of the writ petitioners in the above two writ petitions. By proceedings dated 24-11-1996 he was granted time scale of pay in the scale of Rs. 1875-3750 as Grade II Technical Work Inspector w.e.f. 1-12-1998. By the proceedings dated 29-8-2000, the 3rd respondent has withdrawn the said orders and directed that the petitioner be paid daily wages only. Questioning the said orders, the petitioner has filed the writ petition.
7. The learned Counsel appearing for the petitioners would submit that the prayer of the petitioners for regularisation of services in terms of Clause (6) of G.O. Ms. No. 212 had not been considered by the respondents in proper perspective. He would urge that there were many vacancies existing in the other departments and, thus, the petitioners could have been adjusted in those vacancies.
8. Learned Counsel appearing for the respondents, on the other hand, would submit that having regard to the fact that the services of the petitioners had not been regularised, the question of payment of their salary on a regular scale of pay does not arise. It was submitted that as there were no sanctioned posts, question of regularisation of their services does not arise. In any event, grant of regular time scale of pay, learned Counsel contends, is contrary to the directions issued by the Supreme Court in Ghaziabad Development Authority and Ors. v. Vikram Chowdary and Ors., and State of U.P. and Ors. v. U.P. Madhyamik Shiksha Parishad Sharamik Sangh and Ors., 1995 (6) Scale 434 = AIR 196 SC 708.
9. The question, which arises for consideration, is as to whether the scale of pay granted to the petitioners could be withdrawn unilaterally. Another question, which arises for consideration, is whether the orders of this Court in the earlier writ petitions can be questioned collaterally.
10. The matter relating to interpretation of G.O. Ms. No. 212 dated 22-4-1994 in the light of the various decisions of the Apex Court including the decision in M.L Singh (supra) came up for consideration before this Court in Secretary, A.P. Social Welfare Residential Educational Institutions Society v. P. Venkata Kumari, in M.D., A.P. Beverages Corporation Ltd. v. M. Peter, . It was held that unless the conditions laid down in the Government orders are satisfied, the employees cannot seek for regularisation of their services as a matter of right, even though they might have put in more than five years of service. In M.L. Singh (supra) the Supreme Court clearly held that all the conditions laid down in G.O. Ms. No. 212 must be strictly complied with.
11. Clause (5) of the conditions laid down in G.O. Ms. No. 212 clearly states that absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the A.P. Public Service Commission/District Selection Committee. Existence of 'clear vacancies', therefore, is sine qua non for consideration of the cases of the concerned employees for their regularization. Unless there exists a clear vacancy, the question of regularizing the services of the employee does not arise.
12. It is true that the learned single Judge in the orders dated 2-8-1998 passed in WP No. 6142 of 1998 and other cases referred to G.O. Ms. No. 212 as also the decision of the Apex Court in M.L. Singh's case and directed regularisation as also grant of regular scale of pay. But, the said directions are contrary to the judgment of the Apex Court.
13. Any judgment in violation of inconsistent with the judgment of the Apex Court is a nullity. The decision of the Apex Court is the law of the land in terms of Article 141 of the Constitution of India. This Court is bound to follow the decisions of the Apex Court unless the same is held to be not applicable to the facts and circumstances of the case. The learned single Judge proceeded on the basis that the said decision is applicable, but, despite the same, the impugned directions were issued. Furthermore, even after issuing the directions, it was observed "However, it is made clear, as per condition No. 6 of the said GO if there is no vacancy in the parent department his case may be considered for absorption wherever the vacancy is available". Such a direction is clearly contrary to the decision of the Apex Court in M.L. Singh (supra).
14. It is now a well-settled principle of law that a Judgment is not to be read as a statute. It has to be read in its entirety and reasonably. The judgment of Apex Court therefore must be interpreted in its entirety.
15. In General Electric Co. v. Renusagar Power Co., , the Apex Court held that "words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes".
16. It was observed:
As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes. We do not have any doubt that when the words "adjudication of the merits of the controversy in the suit" were used by this Court in State of U.P. v. Janki Sarana Kailash Chandra, , the words were not used to take every adjudication which brought to an end the proceeding before the Court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided.
17. In Smith Kline and French (India) Ltd. v. CIT, , the Supreme Court held that an observation in a judgment must be read in its context and not literally or as provisions in a statute.
18. In Central Coalfields Ltd v. State of Bihar, 1993 (1) PLJR 617, it was held:
It is well known that judgment of the Supreme Court has to be read in a reasonable manner. In a recent decision, the Full Bench of the Allahabad High Court in Ganga Saran v. Civil Judge, Hapur and Ors. , held:
It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent from its earlier decision without even referring to them or without even referring to the relevant provisions of law.
19. See also State Bank of India v. Election Commission of India, 1993(2) BLJ 500 AT 515.
20. It is well known that a decision is an authority for what it decides and not what logically can be deduced there from.
21. So read and with a view to uphold the validity of the judgment, the same must be interpreted to mean that the direction for regularisation of services as Non-Technical Work Inspector or Attender, as the case may be, from the date of competition of five years and payment of wages in regular scale of pay were given subject to fulfillment of the conditions laid down in G.O. Ms. No. 212 and upon arriving at a finding as to whether there exists any vacancy in the parent department. A Judgment, which is a nullity, is not binding on the subsequent Bench and in any event it is not binding on a larger Bench.
22. In A.R. Antulay v. R.S. Nayak, , the Apex Court held:
In giving the directions this Court infringed the Constitutional safeguards granted to a citizen or to an accused and in justice results therefrom. It is just and proper for the Court to rectify and recall that injustice, in the peculiar facts circumstances of this case.
xx xx xx By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "Actus Curiae Nerninern Gravabit" an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
23. It was observed:
In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a Court competent to try the offence. It was directed to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The directions have been issued without observing the principle of audi alteram partem. It is true that Shri Jethmalani has shown us the prayers made before the High Court which are at page 121 of the paper-book. He argued that since the transfers have been made under Section 407, the procedure would be that given in Section 407(8) of the Code. These directions, Shri Jethmalani sought to urge before us, have been given in the presence of the parties and the clarificatory order of April 5, 1985 which was made in the presence of the appellant and his Counsel as well as the Counsel of the State Government of Maharashtra, expressly recorded that no such submission was made in connection with the prayer for grant of clarification. We are of the opinion that Shri Jethmalani is not right when he said that the decision was not, made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the Court can ignore it. It is also true that the decision of this Court in the case of The Bengal Immunity Co. Ltd v. State of Bihar was not regarding an order which had become conclusive inter-parties. The Court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties.
24. In this case also, the Judgment of this Court, if read in a different context, the same would be violative of Article 14 of the Constitution of India. It is true that even in a case of this nature, before a mistake is directed to be rectified, the principles of natural justice is required to be complied with as the order involves civil or evil consequences. But while remitting the matter back to the respondents for giving an opportunity of hearing to the petitioners, the Court has to see whether it would make any difference. As the answer to the said question in this case must be rendered in negative, in our opinion, a direction for compliance of the principles of natural justice would be a futile exercise for the following reasons.
25. Before us and before the respondents also, the question of interpretation of the judgment of this Court would only arise. In Secretary, A.P. Social Welfare Residential Educational Institutions Society v. P. Venkata Kumari, and in M.D., A.P. Beverages Corporation Ltd. v. M. Peter, , the effect of various judgments of this Court and the Apex Court vis-a-vis the applicability of G.O. Ms. No. 212 has already been considered by this Court. The concerned authorities would thus be bound by the said decisions of this Court and no order could be passed by them, which may be contrary to the Judgments of the Apex Court and this Court. The concept of compliance of principles of natural justice has undergone a sea change. The prejudice doctrine has now taken a firm root. Even assuming that the denial of opportunity of hearing itself cause prejudice, as was stated by the Supreme Court in S.L. Kapoor v. Jagmohan, , writ should be issued where it would not result in futility. It was held:
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It all comes from a person who had denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.
26. However, the learned Counsel appearing for the parties are correct in contending that while passing the impugned orders, the respondents have not considered Condition No. 6 of G.O. Ms. No. 2I2 at all which reads thus:
In the case of work charged establishment, where there will be no clear vacancies, because of the fact that the expenditure on work charged is at a fixed percentage of P.S. charged and as soon as the work is over, the services of work charges establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade Service.
27. The cases of the petitioners had not been considered from the aforementioned angle.
28. Difference must be noticed between a clear vacancy and non-existence of any sanctioned posts.
29. In this view of the matter, the writ petitions are disposed of with a direction upon the respondents to consider the case of the petitioners afresh in the light of the observations made above as also the decisions of this Court referred to hereinbefore and pass appropriate orders at an early date and in any case not later than four weeks from the date of communication of this order. It is made clear that in the event the services of the petitioners are regularized, they would be entitled to a regular scale of pay from the date of regularization of their services with all consequential benefits attached thereto. We further make it clear that in the event the services of any of the petitioners have already been regularised, they would be entitled to the benefit of regular scale of pay from the date of regularisation of their services. No costs.