Andhra HC (Pre-Telangana)
C.Dhanamjaya vs Sri Venkateswara ... on 29 April, 2013
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR
WRIT PETITION No.11885 of 2012
Dated:29-04-2013
C.Dhanamjaya ... Petitioner
Sri Venkateswara University,Tirupati, Chittoor District, Rep. by its Registrar
... Respondent
Counsel for the Petitioner:Mr.V.Jagapathi
Counsel for the Respondent:Mr. Kasa Jaganmohan Reddy
<GIST:
>HEAD NOTE:
? Cases referred
1. 1992 (1) SLR 643
2. AIR 1990 SC 2228
3. (2007) 7 SCC 689
4. (1986) 1 SCC 637
5. AIR 1986 SC 584
6. AIR 1982 SC 879
THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR
Writ Petition No. 11885 of 2012
and
Contempt Case No.1259 of 2012
Common Order:
Since the main controversy involved in both the writ petition and contempt case is common in nature, they are being disposed of by this common order. The Writ Petition No. 11885 of 2012 is filed to issue a Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, calling for the records relating to the issuance of Order No.E1(1)/Research Assistant/2012, dated 30.03.2012 from the file of the respondent and to set aside the same by declaring it as arbitrary, discriminatory and illegal and consequently to declare that the petitioner is entitled to continue in service, till the post of Research Assistant is filled up on regular basis and further direct the respondent to pay the minimum salary to the petitioner in the time scale of pay attached to the said post and also fill up the vacant sanctioned post of Research Assistant in the Department of Human Rights and Social Development.
The brief facts of the case are as follows:
The respondent-University issued a circular No.E1(1)/2007, dated 28.07.2007, inviting applications for the post of Research Assistant in S.V. University, ORI, Peace and Non-violence and Human Rights and Social Development, Tirupati, on contract basis from the qualified persons. In pursuance of the above circular, the petitioner submitted his application duly enclosing his certificates for appointment to the post of Research Assistant in the Department of Human Rights and Social Development. The petitioner was called for the interview for the post of Research Assistant on 29.08.2007 and he was selected for the said post. Meanwhile, the Head, Department of Human Rights and Social Development, SVUC of International Studies, Tirupati, by his letter dated 04.09.2008, informed the Registrar of the respondent-University that the staff fell short due to appointment of one of the employees of the department for a teaching position and therefore a competent person is to be appointed in the existing vacancy. According to the petitioner, the said existing vacancy post is earmarked for SC category and he belongs to SC category. The Registrar of the respondent-University, by letter No.E1(1)/2008, dated 14.10.2008, permitted the Principal, SVUC of International Studies, Tirupati, to hire the services of one competent person under Category-I for a period of 73 days on consolidated pay of Rs.6000/- per month for a period of 73 days with effect from 15.10.2008 to cope up the day to day Library and Research works in the Department of Human Rights and Social Development, SVUC of International Studies, Tirupati.
Accordingly, the petitioner joined the said post on 15.10.2008. According to the petitioner, from the date of joining duty as Research Assistant on 15.10.2008 he has been paid salary on daily wage basis at Rs.230.76 ps., for a period of 26 days only in a month i.e., maximum of Rs.6000/- per month. The respondent-University, by letter No.E.I(1)/CMMs/Extn/300908/2008, dated 08.01.2009, permitted the Principal, SVUC of International Studies to continue the petitioner in the department of Human Rights and Social Development for a period of 89 days with effect from 29.12.2008. Similar requests made by the other departments were also accepted. It appears that the department of Human Rights and Social Development, which was under the control of SVUC of International Studies was transferred and placed under the control of SVU College of Arts and therefore the Principal, SVU College of Arts has been sending proposals to the Registrar regularly requesting for continuing the petitioner as Research Assistant in the department of Human Rights and Social Development. Accordingly, the Registrar of the respondent-University has been according permission to continue the petitioner in service as Research Assistant for a period of 89 days after giving one day break in service on every occasion. According to the petitioner, the respondent issued orders vide proceedings No. EI(1)/2008, dated 14.10.2008, 08.01.2009, 07.04.2009, 30.06.2009, 03.10.2009, 20.03.2010, 17.04.2010, 10.08.2010, 21.10.2010, 28.12.2010, 22.07.2011 and 11.10.2011 permitting the Department of Human Rights and Social Development to continue him in service after giving artificial breaks of one day, on completion of 89 days on every occasion. According to the petitioner, though artificial breaks of one day on every occasion was shown in the records, but in fact he had worked continuously in the said post and put in more than three years of service. The petitioner's specific case is that he was selected by the selection committee and appointed to the post of Research Assistant against the sanctioned post in the department of Human Rights and Social Development earmarked for SC category and he has been continuing in the said post for the last more than three years and therefore he is entitled for payment of time scale of pay applicable to the post of Research Assistant and that he is entitled for regularization of his services. It is also his case that he is unable to maintain himself and his family with the meager daily wages being paid to him. It is also his case that if his services are continued without giving artificial break, pending regularization of his services, it would boost up his morale to discharge his onerous duties more effectively and mitigate his problems. It is also his case that he has been regularly working and there is continuous work and the respondent cannot exploit him taking advantage of its dominant position.
The petitioner filed W.P. No.32594 of 2011 challenging the action of the respondent-University in giving artificial breaks in service on completion of every 89 days period and for consequential reliefs i.e., for regularization of his services in the sanctioned vacant post of Research Assistant in the Department of Human Rights and Social Development in the respondent-University, earmarked for SC category and to direct the respondent to pay him salary in the minimum of the time scale of pay with usual allowances applicable to the post of Research Assistant w.e.f. 15.10.2008, ignoring the artificial breaks in his service and with all other consequential benefits, monetary or otherwise.
This Court in W.P. No.32594 of 2011 ordered notice before admission on 15.12.2011 and posted the writ petition after two weeks. Accordingly, the writ petition was listed in the motion list on 31.12.2011. At the request of the respondent it was adjourned and listed on 18.01.2012. But, no orders were passed in the said writ petition. The respondent did not file counter in the said writ petition. According to the petitioner, the last extension of 89 days period commenced from 27.09.2011 sanctioned by the respondent vide letter No.E.I(1)/2008, dated 11.10.2011 and 89 days period expired on 24.12.2011. According to the petitioner, even before the expiry of 89 days period on 24.12.2011 the respondent received notice in Writ Petition No.32594 of 2011. According to the petitioner, his services and the services of other similarly situated persons have been continued for a period of 89 days with one day break in service, but the salary bills could not be submitted by the Heads of the Department concerned, for want of extension orders. According to the petitioner, on account of expiry of term of the Vice Chancellor of the respondent-University the respondent did not accord permission to extend his services. Therefore, the salaries of all the persons who are engaged on the same terms and conditions were withheld. According to the petitioner, though the last extension of 89 days period sanctioned by the respondent, vide letter dated 11.10.2011, expired on 24.12.2011, he was being continued but his salary from December 2011 has not been paid so far. The further case of the petitioner is that on 20.04.2012 he came to know that as per the orders issued by the Vice Chancellor (FAC) of the respondent-University, the respondent issued orders vide letter No.E1(1)/CMM/2011, dated 19.03.2012 extending the services of all other persons, engaged in other departments for a period of 89 days with retrospective effect from the dates the earlier extension expired, and eventually all of them were paid wages due to them for the said period. The respondent has also issued further extension orders vide letter No.E1(1)/CMM/2012, dated 11.04.2012 according permission to engage the services of the persons for further period of 89 days, as per the order dated 04.04.2012 of the Vice-Chancellor (FAC). According to the petitioner, the Head of the Department, Human Rights and Social Development of the respondent-University, under whom the petitioner has been working, has orally informed him that unless the sanction orders are received from the respondent he cannot forward the salary bill of the petitioner though he has been continuously working in spite of the expiry of the sanction order on 24.12.2011. According to the petitioner, he has approached the concerned officials in the office of the respondent on 20.04.2012 to verify the reasons for not extending his services and he was orally informed by the concerned staff that since he filed Writ Petition No.32594 of 2011, questioning the action of the respondent in giving artificial breaks of one day on completion of 89 days period, he would not be given extension orders.
It is the specific case of the petitioner that he is the only Research Assistant working in the Department of Human Rights and Social Development of respondent-University. The petitioner submitted representation on 01.12.2011 requesting the respondent to pay him the salary in the time scale of pay applicable to the post of Research Assistant and to continue him in service without giving any artificial breaks in service. The respondent passed orders on 30.03.2012 rejecting the representation of the petitioner and contending inter alia that the respondent-University permitted to hire the services of the petitioner purely on temporary basis and that he never joined in a sanctioned post and that his services were extended for every 89 days with one day break and there was no continuation of service and therefore his services will not be treated as part of university service and that after accepting the terms and conditions only the petitioner reported to duty and therefore he is not eligible for time scale of pay and for regularization of his services. The respondent also contended that the petitioner has suppressed the fact of filing Writ Petition No.32594 of 2011. But as seen from the facts, the petitioner submitted the above referred representation on 01.12.2011, but he filed the writ petition on 12.12.2011. Therefore, as on the date of submitting representation he had not filed the writ petition, the contention of the respondent that the petitioner has suppressed the filing of the writ petition appears to be not correct.
Challenging the order dated 30.03.2012, the petitioner filed the present writ petition in W.P. No.11885 of 2012 and sought a declaration that he is entitled to continue in service till the post of Research Assistant is filled up on regular basis and to pay him the minimum salary in the time scale of pay attached to the said post.
This Court, on 24.04.2012, while admitting W.P. No.11885 of 2012, passed the following orders in WPMP No.14969 of 2012.
"The petitioner has earlier filed a writ petition in W.P. No.32594 of 2011 questioning the action of the respondents in giving artificial breaks on completion of 89 days service on every occasion and for other reliefs. The said writ petition is pending for admission.
The petitioner has filed copies of letters dated 19.03.2012 and 11.04.2012 addressed by the Registrar, S.V. University, Tirupati, to the incharge Director, SV University, ORI, Tirupati, and to the Principal, SVU College of Arts, Tirupati, wherein the services of the similarly situated persons, whose services have been engaged for 89 days, have been extended and the Registrar has clearly stated in those letters to send their claims to the finance branch for arranging payment.
When the cases of similarly situated persons have been considered and their services are extended and their claims have been sent to the finance department, it is clear that the respondents are not justified in not extending similar benefit to the petitioner merely because he has earlier filed a writ petition or approached this Court.
As and when a person approaches the Court or matter is pending before the Courts, Tribunals or other authorities, the respondents are not expected to pass adverse orders affecting the rights of the employees without approaching the Court and without seeking the permission of the Court.
As far as giving artificial breaks is concerned, the Apex Court has categorically held that giving artificial breaks merely for the purpose of showing breaks for denying the benefit of continuity of service, which an employee or a worker otherwise would have been entitled under the provisions of the Acts beneficial to the workmen or employees, is arbitrary and unreasonable.
Learned counsel for the respondents submits that there is no work during vacation and therefore continuing the petitioner during vacation does not arise.
In the circumstances, if the similarly situated persons in other departments are continued, the respondents shall extend the same benefit to the petitioner. If similarly situated persons in other departments who are appointed on contract basis are discontinued during summer vacation, then the respondents may discontinue the services of the petitioner during summer vacation. But, as and when colleges are reopened, the respondents shall not appoint any other person on contract basis in the same department ignoring the claim of the petitioner. Notice."
The further case of the petitioner is that after receiving the interim order, dated 24.04.2012, passed in WPMP No.14969 of 2012 in W.P. No.11885 of 2012, the respondent did not permit him to sign in the staff attendance register with effect from 02.05.2012, however he is continuing to attend his research work and discharging his duties. By order dated 30.07.2012 the respondent extended the service of the petitioner for a period of 89 days from 27.12.2011 to 24.03.2012 giving break in service from 15.12.2011. The specific case of the petitioner is that from the date of his engagement in the Department of Human Rights and Social Development on 15.10.2008, he has been continuously working. The petitioner submitted representations dated 03.05.2012, 16.05.2012, 23.06.2012, 25.06.2012, 26.06.2012, 29.06.2012, 30.06.2012, 02.07.2012, 03.07.2012, 04.07.2012, 06.07.2012, 07.07.2012, 09.07.2012, 10.07.2012, 11.07.2012, 12.07.2012 and 13.07.2012 requesting payment of salary due to him from December 2011 onwards. It is also the case of the petitioner that he was constrained to issue a notice on 05.08.2012 to the respondent intimating the order dated 30.07.2012 and stating that discontinuing from service amounts to willful, intentional and deliberate disobedience of the orders dated 24.04.2012 in WPMP No.14969 of 2012 in W.P. No.11885 of 2012 and called upon the respondent to continue him in service on par with other similarly situated persons and to pay salary due to him from the month of December 2011.
Then the respondent issued a reply notice stating that the University's power to utilize the services of any individual on temporary basis is only for a period not exceeding 89 days as per the requisition and demand from the department depending upon the arrears of work under the provisions of the SV University Act and the AP University Act, 1991. It is further contended that in exercise of the said power, the university utilized the services of the petitioner in the Department of Human Rights and Social Development till 24.12.2011 as per the demand from the department. Subsequently, the University permitted to utilize the services of the petitioner up to 24.03.2012 as per the letter dated 07.12.2011 from the Department. The specific case of the respondent is that as there is no demand from the department the services of the petitioner were not utilized after 24.03.2012. With regard to the contention that the services of similarly situated persons in other departments were utilized, the case of the respondent is that the University is utilizing the services of those persos, since there is demand and as per the demand from the department. It is also the case of the respondent that no other person is appointed in the place of the petitioner and the contention of the respondent is not correct that there is no demand or work load in the department of Human Rights and Social Development. Alleging that the respondent-University have violated the orders passed by this Court in WPMP No.14969 of 2012 in W.P. No.11885 of 2012, dated 24.04.2012, the petitioner filed the contempt case in C.C. No.1259 of 2012 contending inter alia that in spite of receiving interim orders passed by this Court directing the respondent-University to continue him in service, if similarly situated persons in other departments are continued, they are not allowing him to perform his duties. The petitioner has specifically averred that similarly situated persons namely Vijaya Kumar Reddy and Subramanyam, who were engaged in the Department of Centre for Studies in Peace and Non-Violence (CSPN) respectively and Venkateshan, who was engaged in SV University ORI along with him are being continued in service even during summer vacations with a break of one day after completion of every 89 days period and they are being paid monthly salary regularly. However, the respondents are not continuing him in service.
Subsequently, the petitioner filed WPMP No.626 of 2013 in W.P. No.11885 of 2012 seeking permission to amend the prayer in the writ petition by adding the words "by declaring Condition 6(ii) of the Conditions of Service of the Establishments of the University under Chapter-XXII of the Laws of the university, 1974 as illegal, ultra vires and unconstitutional." The petitioner also filed a detailed reply. His main case is that he was selected by the selection committee prior to his allotment to the Department of Human Rights and Social Development. It is his specific case that he has been discharging teaching duties of a sanctioned post of Research Assistant in addition to the research work, field work etc., assigned to him. It is also his case that since he is being continued against the sanctioned post of Research Assistant in the Department of Human Rights and Social Development of the respondent-University from 15.10.2008 his appointment cannot be said to be made under the provisions of Condition 6(ii) of the Conditions of Service of the Establishments of University. Further it is his case that the said rule which permits the respondents to give artificial breaks though there is continuous work itself is liable to be declared as illegal, ultra vires and unconstitutional. It is also his case that he has filed a writ petition and by virtue of interim orders he continued in service and that the respondent also by order dated 30.07.2012 extended his services from 25.03.2012 and in the meanwhile when he made representations the respondent rejected his claim by impugned order dated 30.03.2012, therefore he has challenged the order dated 30.03.2012. The case of the respondent, as seen from the counter affidavit filed by Prof. K. Sathyavelu Reddy, Registrar of the respondent-University, is that basing on the work load the concerned departmental heads shall request for hiring of competent person(s) under category-I for a period of 89 days and further extension will be given to the incumbents only on the request of the concerned head of the department. It is his further case that as far as the petitioner is concerned, the Head, Department of Human Rights and Social Department has not sent any request for further extension of the services of the petitioner after 24.03.2012 and unless there is demand from the Head of the Department, the Registrar has no power to engage any person. It is also his case that as per the attendance register procured from the concerned Head of the Department the petitioner signed up to 01.05.2012 and accordingly orders were issued for claiming his salary from 27.12.2011 to 24.03.2012 and that the petitioner did not claim the same and the Head of the Department has not sent any proposal/request for extension of services of the petitioner beyond 24.03.2012. It is also his case that the university is ready to issue orders for payment for the period from 27.03.2012 to 01.05.2012 with artificial break of one day i.e., on 26.03.2012. It is also his case that the University is not extending the services of all other similarly situated persons where there is no demand of the concerned Head of the Department. It is also his case that no other person is engaged in the place of the petitioner. Thus, the specific case of the respondent is that as there is no request from the Head of the Department of Human Rights and social development the services of the petitioner could not be taken beyond 24.03.2012. The above said counter affidavit was filed on 18.09.2012. The Registrar of the University again filed another affidavit on 24.11.2012 contending inter alia that for filling up permanent posts of Research Assistants in various departments of S.V. University, there is a separate procedure for recruitment of permanent posts in the University. It is his further case that though selection committee is constituted for selecting the persons for 89 days, but the procedure for selecting regular vacant posts is not followed. His further case is that the Government of A.P., have not given clearance for filling up all vacant posts in the University including the Research Assistant posts. The University in order to cope up the work load in various departments, is temporarily hiring the services of competent persons for not exceeding 89 days each time. It is also his case that in the case of the petitioner, the Department of Human Rights and Social Development submitted proposals for hiring one competent person in the year 2008 to cope up the work load in the department and the University permitted the department to hire the competent person from 15.10.2008 and accordingly the department utilized the services of the petitioner till completion of the said work up to 01.05.2012. Professor V.R.C. Krishnaiah Head of the Department of Human Rights and Social Development also filed an affidavit stating that as there is no work load in the department, the department has not sent proposals for further hiring of service of the petitioner after 01.05.2012 and accordingly the services of the petitioner were discontinued from 01.05.2012. Similarly, the affidavits of Professor B.V. Chalapathi, Executive Secretary, Centre for Studies in Peace and Non-Violence and the affidavits of some other Professors have been filed. Sri V. Jagapathi, learned counsel for the petitioner, submitted that a regular post became vacant due to appointment of one of the employees of the department for teaching position and the same is clear from the letter of the Registrar to the Principal, SVUC of International Studies dated 14.10.2008 and the services of the petitioner were utilized in the said post from 15.10.2008 till 01.05.2012. It is further submitted that the petitioner was selected by the selection committee and his services were regularly utilized and the same is clear from the various proceedings issued by the respondent-University and records maintained from time to time. It is further argued that the respondent being University and the concerned professors working in the Department of Human Rights and Social Development who have to teach human rights subject to the students have been violating the human rights of the petitioner. It is further submitted that those who violate the human rights, who have no regard for Court orders, have become model professors for the students. His main submission is that they cannot hire and fire according to their will and pressure and the respondent should act as model employer. The main submission of the learned counsel for the petitioner is that since the petitioner has challenged the action of the respondent-University in giving artificial breaks in service, they have deliberately discontinued the services of the petitioner when all other similarly situated persons in other departments are continued. His main contention is that the respondents having received the interim orders of this Court dated 24.04.2012 did not allow the petitioner to sign in the attendance register from 02.05.2012 onwards. It is also his submission that the service conditions of an employee cannot be changed merely because such an employee has knocked the doors of the Court for justice. If a person, who approached the Court, has to face the threat of termination from service, then no person would have courage to approach the Court, though his rights have been violated and great injustice is done to him. The very attitude of the authorities that the persons who approached the Court should be taught a lesson has to be condemned in the interest of democracy. Such atrocious attitude cannot be allowed to continue in a democratic republic. The learned counsel has referred to various orders passed by the respondent from time to time which show that the services of similarly situated persons in other departments have been extended. His main submission is that admittedly the Government did not allow the respondent to fill up the regular vacancy and this itself shows that there is continuous work and when there is continuous work giving artificial breaks is illegal and subsequently discontinuing the services of the person who approaches the Court is condemnable. The learned counsel has referred to the semester time tables for the years 2008-09, 2009-10, 2010-11, 2011-12 and other works assigned to the petitioner. It is also submitted that the petitioner was directed to publish a book on "Mahilalu - Manava Hakkulu (2011)" and that the petitioner has submitted the said book by 26.08.2011. Again he was directed to publish a book "Mathamma Vyavastha" on or before December 2013 without fail by letter dated 19.09.2011. He has also referred to the muster rolls for the month of March 2010 and attendance sheets which go to show that except on Sundays the services of the petitioner were engaged on all other days including on the days on which alleged break in service was shown. It is also submitted that the contentions of the respondent are self contradictory since at one place the respondent stated that the services of the petitioner were not extended beyond 24.12.2011, but subsequently in other letters and in the counter the respondent stated that the services of the petitioner were engaged till 01.05.2012. Thus, the version of the respondent is self contradictory with regard to demand of work. He has also referred to several letters said to have been written by the petitioner which show that he was continuously reported to duty but he was not allowed to sign in the attendance register. He has also referred to the letter dated 30.07.2012 from the Registrar, SV University, Tirupati to the Principal, SVUC of Arts, Tirupati, wherein the services of the petitioner have been extended from 27.12.2011 to 24.03.2012 giving one day break in service in spite of specific orders of this Court not to give artificial breaks in service. Thus, his submission is that the specific directions of this Court have been violated and the respondent is liable for the act of contempt of Court. It is also his submission that the representations of the petitioner dated 01.12.2011 and 18.09.2012 were sent through the Head of the Department of Human Rights and Social Development to the Registrar, wherein the petitioner had categorically stated that he was continuing to attend his normal duties i.e., Library and Research Work in the Department of Human Rights and Social Development. Since the said representation is forwarded by the Head of the Department, the Head of the Department has impliedly accepted the contention of the petitioner. It is also submitted that the petitioner's services were engaged to take second period on human rights and duties and on third Saturday of every month the petitioner organized field visit for first and second semester students. Learned counsel for the petitioner has relied on the decision reported in Karnataka State Private College Stop Gap Lecturers Association v. State of Karnataka1, in support of his contention that practice of ad hoc appointment with one day's break in service is arbitrary and abnoxious. He has also relied on a decision reported in Jacob M. Puthuparambil v. Kerala Water Authority2, wherein certain guidelines have been given for regularization of services of certain employees working under Kerala Water Authority. He has also relied on a decision reported in Commissioner, Karnataka Housing Board v. C. Muddaiah3, in support of his contention that once a direction is given by a competent Court, it has to be obeyed and implemented without any reservation and where a person is not allowed to work in spite of Court orders, the principle 'no work, no pay' does not apply. It is also his submission that the guidelines laid down in Umadevi's case do not apply to the present case. It is also his submission that even if any rule is there such rule has to be set aside as unconstitutional. Sri Kasa Jaganmohan Reddy, learned Standing Counsel for the respondent, submitted that the University can make temporary engagement under Condition 6(ii) of the Conditions of Service of the Establishments of the University. It is also his submission that the Government of A.P., have not given clearance for filling up of vacant posts in the University and in the above circumstances to cope up the work load in various departments the University has to hire the services of competent persons and in view of the above condition, the respondent cannot engage a person for more than 89 days and if that rule is not there the University cannot even engage any person for 89 days. His main submission is that as long as there was work, the services of the petitioner were utilized and as there is no work in the department in which the petitioner was working, the University disengaged the services of the petitioner. His main submission is that no employment notification was issued and there was no regular recruitment and no selection process or rule of reservation was followed. His further submission is that temporary appointment for 89 days is only a stop gap arrangement and therefore the petitioner cannot claim any right. It is further argued that the petitioner is well aware of the terms and conditions of the service on which he was engaged and now he cannot claim to continue him in service or to pay scale of pay attached to the post of Research Assistant. His main submission is that if the respondent is directed to pay time scale to the petitioner, then it will encourage back door appointment. He has also referred to Section 57 of the A.P. University Act and Condition 6(ii) referred to above. It is also his submission that without the sanction of the Government no person can be engaged by the University. He has also referred to Act No.2 of 1994 in support of his contention that there is prohibition to make any temporary appointments.
The points that arise for consideration are; (1) whether the services of the petitioner were engaged in a sanctioned post? (2) whether the respondent is justified in giving artificial breaks in service after every 89 days? (3) whether the impugned order dated 30.03.2012 is liable to be set aside? (4) whether the respondent-University have committed the act of contempt of Court? And (5) whether the service conditions of an employee can be changed during the pendency of the court proceedings?
After the respondent filed counter affidavit, the petitioner filed reply affidavit on 30.12.2012 and thereafter the respondent has not filed any counter. In his affidavit, dated 30.12.2012, the petitioner has categorically stated that he has been continuing in service in the respondent-University from 15.10.2008 with artificial break of one day on completion of every 89 days. Then he filed W.P. No.32594 of 2011 for redressal of his grievance and that the respondent stopped paying his salary from December 2011 and by order dated 30.03.2012 the respondent informed him that he is not eligible for time scale of pay and not eligible for regularization of his service as permanent employee. Questioning the said order, he filed the present writ petition. He has categorically stated in his affidavit that he was selected by the selection committee in the interview conducted by the University in pursuant to the circular No.E.I/2007, dated 28.07.2007 in the sanctioned post of Research Assistant in the Department of Human Rights and Social Development. It is also his contention that there is sanctioned vacant post of Research Assistant in the Department of Human Rights and Social Development on account of retirement of the incumbent and that he was allotted to the said department and it is his specific case that when a person is appointed and when services of a person are utilized against sanctioned budget post, the question of demand by the Head of the Department of Human Rights and Social Development depending upon work load etc., does not arise. As seen from the documents, the respondent-University, vide Circular No.E1(1)2007, dated 28.07.2007 invited applications for the post of Research Assistant in the S.V. university, ORI, Peace and Non-Violence and Human Rights and Social Development, Tirupati on contract basis from the qualified persons. The qualifications prescribed for human rights department is masters degree in law with P.G. Diploma in human rights and social development or Masters Degree in Social Sciences with P.G. Diploma in Human Rights and Social Development or M.A in Human Rights and Duties. There is no whisper in the said circular that the posts are temporary or that the candidates would be engaged for 89 days only or that an artificial break would be given in their service. There is nothing in the said circular to show that the services would be disengaged if there is no demand from the particular department. The circular only says that the applications are invited for the post of Research Assistant on contract basis. What are the terms and conditions of the contract are not made available. Anyhow, the letter from the Registrar, S.V. University to the Principal, SVUC of International Studies dated 14.10.2008 assumes importance in this case. In this letter, there is reference to the letter dated 04.09.2008 addressed by the Head, Department of Human Rights and Social Development, SVUC of International Studies and in that letter the Head of the said Department stated that the staff fell short due to appointment of one of the employee of the department for a teaching position. The Head of the above Department also recommended for appointment of a competent person in the existing vacancy. The words used are "in the existing vacancy", which gives an impression that there is a sanctioned post fell vacant. Referring to the above letter of the Head of the Department of Human Rights and Social Development, the Registrar of the University permitted the Principal, SVUC of International Studies to hire the services of one competent person under category-I on consolidated and fixed amount of Rs.6000/- per month on temporary basis for a period of 73 days with effect from 15.10.2008 to cope up the day to day Library and Research works in the Department of Human Rights and Social Development, SVUC of International Studies, Tirupati. It is also mentioned in the said letter that the hiring of services now given cannot be counted as university service. As far as other departments are concerned, there is nothing on record to show that the appointment was made in any existing vacancy. As far as the petitioner's case is concerned, the above referred letter makes it clear that the services of the petitioner were engaged in a post that fell vacant due to the appointment of one of the employee of the department for teaching position and this letter is not disputed by the respondent. Of course their contention is that the services of the petitioner were engaged as there was a demand from the Human Rights and Social Development and subsequently discontinued when there is no such demand. As seen from the counters of the respondent, it is clear that the university sought clearance to fill up the permanent posts of Research Assistant of various departments in S.V. University. But, the Government of A.P., have not given clearance for filling up all the vacant posts in the University including the above Research Assistant post. Thus, it is clear that the post of Research Assistant in various departments of University are vacant and they are not filled up only for the reason that the Government of A.P., have not given clearance. It is also clear from the counter that in order to cope up the work load in various departments, the University temporarily hired the services of competent persons.
It is most unfortunate that the posts of Research Assistant are not filled in and the Government of A.P. have not given clearance to fill up such posts. It is the primary obligation of the Government to provide education and educational facilities. The Professors, Research Scholars and other teaching staff of the Universities shape the future citizens of this country. When no regular appointments are made it will be difficult to secure competent persons. When a paltry amount of Rs.6,000/- per month is offered the Government or the University cannot expect to get eminent persons who can teach and influence the students. A person who cannot fulfil his basic needs and cannot look after his family members due to shortage of funds may not be in a position to concentrate on research work. Thus, it is clear that it is the Government which is at fault in not according permission to University to fill up the posts of Research Assistants in various departments of S.V. University.
The above circumstances go to show that there are vacant permanent posts of Research Assistants in various departments of SV University and particularly one post fell vacant in the department of Human Rights and Social Development. It has to be seen that there may be casual or temporary engagement of persons to do certain works such as white washing, colouring, minor repairs, digging a well etc. Thus, where the work is of a temporary in nature, then temporary, casual or contract workers may be engaged to complete such works but when the work is perennial in nature i.e., when the work is continuous, law prohibits engaging contract workers. The very object of the Contract Labour Regulation and Abolition Act 1970 is to regulate and improve the conditions of services of contract labour and the ultimate goal is to abolish the contract labour. Though the word 'contract' is used in the notification, but admittedly there is no middle man or contractor in the process of selection or engagement of the petitioner in this case. Section 10 of the Contract Labour (Regulation and Abolition) Act 1970 envisages that appropriate Government may, after consultation with the Central Board or a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. The Government shall have regard to the conditions of work such as whether the work is of perennial nature etc. A research work or a teaching work cannot be treated as a casual or temporary work. Having regard to the circumstances that the permanent posts of Research Assistants could not be filled up since the Government of A.P., have not given clearance for filling such vacant posts, the work cannot be treated as temporary or casual.
As far as engaging for 89 days and then giving artificial break of one day and again engaging for another 89 days is concerned, the Apex Court has categorically held that such practice is illegal. In similar circumstances, in Karnataka State Private College Stop Gap Lecturers Association's case (1 supra), when teachers appointed temporarily for three months or less by privately managed degree colleges receiving cent percent grants-in-aid, approached the Court and when the matter ultimately reached the Apex Court, the Apex Court observed as follows.
"Ad hoc appointments, a convenient way of entry usually from backdoor, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence.
..............If the purpose was to avoid any possible claim for regularization by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State. Such provisions cannot withstand the test of arbitrariness..........
.............The rule making authority lost sight of fact that such policy was likely to give dominance to vested interests who have no opportunity to exploit the educated youth who have to survive even at cost of one meal a day. That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director. Provision of stop-gap appointments might have been well intended and may be necessary as well but their improper use results in abuse. And that is what has happened on a large scale. The helplessness expressed by the State in the counter-affidavit that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing. It sounds like surrender in favour of private managements. .............The order provides that the teacher shall be paid a fixed salary which is ten rupees less than the minimum payable to regular employee."
It has to be seen that certain rights have been conferred to the industrial workers. Thus even when workers are engaged in an industry only managed by private industrialists they are bound to follow the provisions of Industrial Disputes Act. It has to be seen that changing service conditions when a dispute is pending before the authorities is treated as unfair labour practice under the provisions of the said Act. It is also made clear that where a workman is continuously engaged for more than 240 days in a year, he cannot be retrenched without giving one month notice or paying retrenchment compensation. It has to be seen that the employer had to seek permission of the Government before retrenching the workman. It is most unfortunate to say that when the Government is insisting the private employers to follow certain rules and procedure and thereby certain rights have been conferred on the workers working in the industries such benefits are denied to the persons engaged by the Government or the instrumentalities of the government by engaging the persons in the name of contract workers or by showing them as contingent, part-time employees. Whatever rights that have been guaranteed to the workers working in private industries are being denied to the workers engaged in Public Sector departments and the Universities or Electricity Department etc. One of the main ground put forth by the Governments is that the Government is lacking funds to create employment opportunities or to pay regular salaries to the employees and thereby the Government is forced to engage contract workers or the workers on casual basis. Common man is unable to understand as to when concessions of lakhs or crores of rupees are given to the big industrial houses and multi-national companies and when valuable lands, mines etc., are allotted on concessional rates and when more than 60% sales are not shown in the shops and thereby 60 to 70% of the sales tax is not properly collected and when admittedly there is enormous black money which is dominating the socio economic and political fields of this country why the government is not taking steps to take out the black money and utilize for the development of this country. How can it be said that, the Government have no funds? It is for the Government to take proper steps to raise funds. Common man is unable to understand why no proper steps are taken to see that all goods are sold against valid rates and there is proper collection of taxes. If misappropriation and corrupt practices are arrested and the national wealth is properly utilized, there may not be lack of funds. It appears that if steps are taken to see that the goals set out under Article 39 of the Constitution of India are achieved that is wealth is not concentrated in the hands of few persons and the goals set out in part IV of the Constitution can be achieved, then the Government cannot plead justification for not filling up the regular vacant posts and creating a circumstance to force the concerned officers to extract work from the economically poor and exploit their helpless situation. It may be apt to quote what Supreme Court has stated in Jacob M. Puthuparambil's case (2 supra), which is as follows.
"............During the colonial rule industrial growth in the country was tardy and most of the large-sized industries were controlled by British interests. These establishments employed Indian labour on wages far below the sustenance levels. Men, women and even children were required to work for long hours in thoroughly unhygienic conditions. Because of large-scale unemployment there was a surplus labour market which the employers could and did exploit. This virtually forced the labour to accept employment on terms unilaterally dictated by the employers. The relationship between the employer and the employee being purely contractual, the hire and fire rule governed. Those were the days of laissez faire when contractual rights were placed above human rights. The concepts of dignity of labour and fair remuneration for work done were wholly alien. The workers had to work in appalling conditions and at low wages with no job security.
After we attained independence the pace of industrial growth accelerated. Our Constitution makers were aware of the hardships and insecurity faced by the working classes. The Preamble of our Constitution obligates the State to secure to all its citizens social and economic justice, besides political justice. By the 42nd Amendment, the Preamble of the Constitution was amended to say that ours will be a socialistic democracy. In furtherance of these promises certain fundamental rights were engrafted in Part III of the Constitution. The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy'. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore, whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the State shall strive to promote the welfare of the people by minimising the inequalities in income and eliminating inequalities in status, facilities and opportunities; by directing its policy towards securing, amongst others, the distribution of the material resources of the community to subserve the common good; by so operating the economic system as not to result in concentration of wealth; and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. There are certain other provisions which enjoin on the State certain duties, e.g. securing to all workers work, a living wage, just and humane conditions of work, a decent standard of life, participation in management, etc., which are aimed at improving the lot of the working classes. Thus the Preamble promises socio-economic justice, the fundamental rights confer certain justiciable socio-economic rights and the Directive Principles fix the socio-economic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution.
India is a developing country. It has a vast surplus labour market. Large-scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take- it-or-leave-it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour. It is in this backdrop that we must consider the request for regularisation in service. In the case of Daily-rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors. MANU/SC/0434/1987 :
(1988)ILLJ370SC this Court, while dealing with the question of their absorption, referred to the State's obligations (referred to as an individual's rights) under Part IV of the Constitution and observed as under:
Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximization of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. This Court emphasised that unless a sense of belonging arises, the worker will not give his best and consequently production will suffer which in turn will result in economic loss to the nation. This Court, therefore, directed the department to prepare a scheme on a rational basis for absorbing those who have worked for a continuous period of one year.
..............once the appointments continued for long, the services had to be regularised if the incumbent possessed the requisite qualifications as was done by Sub-rule (e). Such an approach alone would be consistent with the constitutional philosophy adverted to earlier. Even otherwise, the rule must be so interpreted, if the language of the rule permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment, must be allowed to continue on their jobs and their services should be regularised. It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee which has settled down and accommodated its needs to the emoluments received by the bread winner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered 'age barred' for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. Therefore, if we interpret Rule 9(a)(i) consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, should not be thrown out but their services should be regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularisation in service.
In Dhirendra Chamoli v. State of U.P.4, the Apex Court observed as follows.
"It is peculiar on the part of the Central Government to urge that these persons took up employment with the Nehru Yuvak Kendras knowing fully well that they will be paid only daily wages and therefore they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a Welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore get the same salary and conditions of service as Class IV employees. It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees."
In Surinder Singh v. The Engineer in Chief, C.P.W.D.5, His Lordship Hon'ble Sri Justice O. Chinnappa Reddy speaking for the Bench observed as follows.
"...........Shri V.C. Mahajan, learned Counsel for the Central Government reiterated the same argument and also contended that the doctrine of 'equal pay for equal work' was a mere abstract doctrine and that it was not capable of being enforced in a court of law. He referred us to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India [1962]44ITR532(SC) . We are not a little surprised that such an argument should be advanced on behalf on the Central Government 36 years after the passing of the Constitution and 11 years the Forty-Second Amendment proclaiming India as a socialist republic. The Central Government like all organs of the State is committed to the Directive Principles of State Policy and Article 39 enshrines the principle of equal pay for equal work. In Randhir Singh v. Union of India (1982)ILLJ344SC) this Court has occasion to explain the observations in Kishori Mohan Lal Bakshi v. Union of India (supra) and to point out how the principle of equal pay for equal work is not an abstract doctrine and how it is a vital and vigorous doctrine accepted through out the world, particularly by all socialist countries. For the benefit of those that do not seem to be aware of it, we may point out that the decision in Randhir Singh's case has been followed in any number of cases by this Court and has been affirmed by a Constitution Bench of this Court in D.S. Nakara v. Union of India (1983)ILLJ104SC). The Central Government, the State Governments likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of taw should ill-come from the mouths of the State and State Undertakings."
While referring to the principle of 'equal pay for equal work', the Apex Court in Randhir Singh v. Union of India6, observed as follows.
"It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay.
.............The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must atleast mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g. , Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the. German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31(g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) we are of the view that the principle 'Equal pay for Equal work' is 'deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer."
When there is competition between the Government and Private Universities, Colleges and Hospitals and when the basic needs of Government Universities, Colleges and Hospitals are not fulfilled, it would certainly result in creating better opportunities to the private business. The criticism that with a view to weaken the Universities, Colleges and Hospitals run or managed by the Government directly or indirectly and to strengthen the private Universities, Colleges and Hospitals, the Government is not allotting the required funds to its Universities, Colleges and Hospitals and also not sanctioning the required posts etc. cannot be ignored as a mere criticism. When the ground realities give some scope to say that there may be some truth in such criticism and, therefore, great responsibility lies on the Government to take all steps to see that Government Universities, Colleges, Hospitals and other Public Sector Industries are strengthened and properly managed.
A reading of the entire material placed before this Court makes it clear that the petitioner was engaged continuously from 15.10.2008 to 01.05.2012. The extracts of the attendance registers, semesters time table clearly go to show that the work was extracted from the petitioner even on the day of alleged break in service. Except on Sundays he was asked to work on all other days. It is also clear that he was entrusted the work to submit research papers on "Mahilalu
- Manava Hakkulu (2011)" and "Mathamma Vyavastha" books.
It is the case of the respondent - University that the Government of Andhra Pradesh have not given clearance for filling up all vacant posts in the University including the posts of Research Assistants, and that in order to cope up with the work load in various departments, temporary appointments are being made for not exceeding 89 days each time. As discussed above, it is also clear from the letter in file No.E.I(1)/2008, dated 14.10.2008 that the staff fell short due to appointment of one of the employees of the Department of Human Rights and Social Development for a teaching position and, accordingly, the Head of the said Department recommended for the appointment of a competent person in the existing vacancy. Accordingly, the Registrar of University permitted the Principal to hire the services of one competent person under Category-I. The petitioner filed the Muster Rolls for the month of March, 2010. According to him, 29.03.2010 is the day on which artificial break in service was shown as per the proceedings. But, the muster rolls reveal that he worked on 29.03.2010. The petitioner has filed the attendance register for the month of December, 2011, in support of his contention that except on Sundays, he worked on all other days including the days on which the dates of artificial breaks shown in his service. A detailed representation was submitted by the petitioner on 16.05.2012 to the respondent and it shows that he reported to duty from 02.05.2012 onwards continuously, but he was not allowed to sign in the attendance register. He sent several representations to the respondent through his own Head of the Department.
Admittedly, the Head of Department of Human Rights and Social Development forwarded the letter on 07.12.2011 seeking permission of hiring the service of a competent person, and accordingly, the service of the petitioner was hired for 89 days from 27.12.2011 to 24.03.2012. After filing the writ petition No.32594 of 2011 on 12.12.2011 and when the respondent received the notice in the said writ petition, there is no extension of service of petitioner on the ground that there is no demand from the Head Department of Human Rights and Social Development. In the counter filed by Prof. K. Sathyavelu Reddy, Registrar of University, dated 31.07.2012, he has mentioned that there was no demand from the Head of Department of the University for extension of service of the petitioner beyond 24.12.2011 and, therefore, his services were not extended. The said averment that his services were not extended beyond 24.12.2011 is quite contrary to the letter No.E.I(1)/CMM/2012, dated 30.07.2012 addressed by the Registrar S.V. University, Tirupati to the Principal, S.V.U.C. of Arts, Tirupati. It is most unfortunate that the respondent seems to have no regard for the truth. Thus, the affidavits filed by Prof. K. Sathyavelu on 31.07.2012 and 18.09.2012 are quite contradictory to one and another.
As referred above, the University has taken a contradictory stand. In the counter affidavit filed by the Registrar, dated 18.09.2012, it is mentioned that the Department has not sent any proposal for further extension of services of the petitioner after 24.03.2012. In the affidavit filed on 24.11.2012, it is mentioned that the Department utilized the services of the petitioner up to 01.05.2012. Admittedly, the other persons who were appointed along with petitioner viz., Vijaykumar Reddy, Mr. Subramanyam, both Department of CSPN and Mr. Venkatesh, Department of ORI are being continued by giving one day break in their service on completion of 89 days. This fact is not in dispute. According to the petitioner, he is being continued in service from 14.10.2008 onwards in the Department of Human Rights and Social Development in the vacant post caused on account of retirement of one Mr. Srinivas Rao, Research Assistant. It is also his case that he was allotted teaching work for the academic years 2008-09 to 2011-12 and after receiving the interim orders passed by this Court on 24.04.2012, his name is not included in the time table for the academic year 2012-13 for teaching work, but however, he is attending to his research work regularly and also field work along with P.G. students of the said Department, and that his representation dated 18.09.2012 is forwarded by the Head of the Department. The petitioner has also filed time tables of the academic years 2008-09; 2009-10;
2010-11 and 2011-12, which show that he was directed to take Second Period in the subject of Human Rights and Duties. He was also directed to attend field work on third Saturday of every month with First and Third Semester Students. It is also not in dispute that he was directed to submit a book on the topic "Mahilalu -Manava Hakkulu" and accordingly he submitted the book on 13.09.2009. He was also directed to submit another book on the topic "Mathamma Vyavastha (Telugu)" on or before December, 2013. The above circumstances clearly go to show that the services of the petitioner were engaged as the staff fell short due to appointment of one of the employees of the Department for a teaching position, and thus it appears that the services of the petitioner were taken in regular vacant post.
Admittedly, the services of the petitioner are utilized from 15.10.2008 till 01.05.2012. If that is the case, it is clear that there was continuous work in the Department of Human Rights and Social Development for which the petitioner was engaged. Admittedly, no regular recruitment is made till this day. In the above circumstances, it is not clear on what basis the respondent is saying that there was no demand from the Head of the Department.
A reading of the entire material gives an impression that after the petitioner approached this Court, the issue whether there is any demand from the department or not was put forth by the respondent. In Chapter-V of Industrial Disputes Act,1947, certain practices are declared as unfair labour practices. To discharge or dismiss the workmen by way of
(a) victimization; (b) not in good faith but under the colourable exercise of employees rights; (c) to abolish. Thus, it appears that during pendency of the proceedings, the employer is not expected to change the service conditions of an employee. Section 33 of the Industrial Disputes Act, 1947 envisages that:
"During the pendency of any conciliation proceeding before a conciliation officer or a Board or any proceeding before an Arbitrator or a Labour Court or a Tribunal or National Tribunal in respect of an industrial dispute, no employer shall
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute.
Save with the express permission in writing of the authority before which the proceeding is pending."
When such right is available to the workman working in a private industry, it is most unfortunate that the respondent has changed the service conditions of the petitioner when the matter is pending before this Court. In spite of passing specific orders on 24.04.2012, 05.10.2012 and 06.11.2012 respectively, the respondent has not complied with the orders of this Court.
We are aware of the fact that normally the principle "no work no pay" has to be followed, but in the similar circumstances, the Apex Court, in Commissioner, Karnataka Housing Board v. C.Muddaiah7, observed as follows.
"We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellate Board, therefore, has no substance and must be rejected".
I have perused various representations submitted by the petitioner from time to time and the legal notices issued on his behalf, and it is clear from the record that he was willing to work and it is also clear from the record that he was entrusted to submit a book on the topic "Mathamma Vyavastha (Telugu)" on or before December,2013, which clearly indicates that there was work for the petitioner till 2013. So, in the above circumstances, the petitioner is entitled for the wages from 15.10.2008 till he is given orders granting minimum time scale of pay.
Any rule or a primary statute which virtually defeats the fundamental rights or, is contrary to the principles laid down under the directive principles of State Policy or other Acts that are made to fulfill the objects of the directive principles of State Policy, has to be declared as ultra-vires and unconstitutional. In the light of the above discussion, the action of the respondent in giving artificial breaks is declared as illegal and in the light of the above referred decision of the Hon'ble Apex Court, the rule under challenge is declared as illegal, unconstitutional and ultra vires. In the light of the above discussion, the impugned order dated 30.03.2012 is set aside and the respondent is directed to continue the petitioner in service without giving any artificial breaks in service till the post of Research Assistant is filled up on regular basis and to pay him the minimum salary in the time scale attached to the said post. The respondent shall pass consequential orders and implement this order within four weeks from the date of receipt of a copy of this order.
Though it may not be possible to give any specific directions to the Government of Andhra Pradesh, but however, having regard to the facts and circumstances of the case, I am inclined to make certain observations to the Government of Andhra Pradesh for its consideration. The Chief Secretary, Government of Andhra Pradesh and other concerned officials may consider the same and take necessary action in this regard.
i) Utmost importance should be given to the Education from primary level to P.G. level;
ii) All the vacancies of Teachers, Professors, Research Scholars etc. should be filled up and whenever there is a proposal for seeking regular appointment, it should be the primary duty of the Government to give sanctions for regular recruitment, so that, the students will not be deprived of the best education in Government Schools, Colleges and Universities;
iii) The Government should provide basic requirements, such as toilets in all Government Schools and Colleges, so that there may not be any drop outs of the girl students.
iv) A committee may be constituted to know the requirements of Professors, Assistant Professors and teaching staff as per raising demand in all the Universities, Colleges, Schools etc, and to find out the requirements for providing basic facilities and infrastructure in those institutions. With the above observations and findings, the Writ Petition is allowed while the Contempt Case is closed. However, in the circumstances, no costs.
As a sequel, the miscellaneous petitions, if any, pending in the above matters, shall stand dismissed.
___________________ B. CHANDRA KUMAR, J.
Dated:- 29th April, 2013 Nsr/Mgr