Andhra HC (Pre-Telangana)
G. Prasad And Ors. vs The Government Of Andhra Pradesh Rep. By ... on 1 January, 1800
Equivalent citations: 1992(1)ALT134
JUDGMENT Eswara Prasad, J.
1. The petitioners, who are 117 in number, are the employees of the 2nd respondent - The Jawaharlal Nehru Technological University, Hyderabad. They seek issuance of a Writ of Mandamus, directing the respondents to regularise their services in the posts held by them with effect from their initial dates of appointment and for consequential directions to the respondents to pay to them regular pay scales.
2. The petitioners were appointed by the 2nd respondent - University and they have been working in various posts, such as, sweepers, attenders, clerks, typists, accountants and drivers etc., for the periods ranging from six months to ten years. They were appointed on a consolidated pay for a period of three months and were being reappointed from time to time with a break of one day after completion of every 89 days. They complain that they were not being paid regular pay scales applicable to the various employees of the University working in the equivalent categories. They further submit that even though there is regular and continuous work for the petitioners, their services are not being utilised in order to avoid payment of salaries according to the regular scales of pay. The posts which the petitioners are holding are of permanent nature and that there was no justification for employing the petitioners on daily wages. The University, the petitioners contends, adopted a vindictive attitude towards the petitioners as they formed an association in order to ventilate their grievances and the University is threatening the petitioners stating that their appointments will not be renewed after the completion of their appointment for a period of three months. This action of the University is violative of Articles 14,15 and 21 of the Constitution, contend the petitioners.
3. The Commissioner of Technical Education and Ex-Officio Secretary to Government, Education Department, filed a counter on behalf of the respondents. The University was established by enactment of The Jawaharlal Nehru Technological University Act, 1972. The Government Engineering Colleges at Anantapur and Kakinada, the Nagarjunasager Engineering College, Hyderabad, the Government College of Fine Arts and Architecture, Hyderabad, were brought under the administrative control of the University. The University receives its entire financial grant from the State Government to meet the expenditure relating to the teaching and non-teaching staff of the University. The University has no powers to create any regular posts with a scale of pay, or to start any new programmes without obtaining sanction from the State Government, as required by Section 20(B) of the aforesaid Act. The petitioners were not the employees of the University Colleges which were taken over on 2-10-1972 on which date the Act came into force. They were all appointed between the years 1982 and 1989 without being sponsored by the employment exchange, on lumpsum wages. There are no regular posts in the schemes in which they were appointed. The University started self-supporting schemes without the approval of the Government. The fees collected from the students admitted in the said schemes is being utilised to cover the expenses as well as the payment of salaries of the petitioners.
In the counter it is further averred that the petitioners cannot be continued beyond ninety days as there are no regular posts, as per the provisions of Section 3(c) of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The proposals sent by the University for creation of new posts were not meant exclusively for the petitioners. The said proposals were meant only to cover the continuance of the scheme which are under the consideration of the Government. The self-supporting schemes were started by the University without the knowledge of the Government and the Government have no obligation to finance them. If the petitioners have to be appointed on regular basis with regular scales of pay, it would involve heavy financial stake to the tune of Rs. 30 lakhs, leading to a chain reaction in other departments.
4. Sri S. Venkata Reddy, learned Counsel for the petitioners contended that the self-supporting schemes started by the University are of permanent nature, as they have been continuing for the past several years and have been successful. The petitioners, who have worked for long periods, should be regularised and should be paid salaries on par with the regular employees of the University engaged in similar work. The learned Counsel contended that the fact that the petitioners are performing the same work which the regular employees of the University are doing, is not denied by the respondents and hence they (petitioners) should be paid salaries on per with the regular employees. The learned Counsel further argued that no appointments were made in the University by calling for a list of candidates from the employment exchanges. He further contended that the income received from the fees collected from the students in connection with the self-supporting schemes was more than sufficient to cover the demands of the petitioners and that the University was squandering away the funds for other purposes and is taking an untenable plea that there are no funds to meet the demands of the petitioners.
5. Sri Subash Reddy appearing for the 2nd respondent - University submitted that there are no regular posts in which the petitioners can be regularly absorbed. The self-supporting schemes are temporary in nature and are likely to be wound up at any time, and that the University has no power to create new posts without the approval of the Government If all the petitioners have to be absorbed on regular basis, the schemes will collapse on account of financial constraints and the schemes have to be wound up. The petitioners are not qualified for being appointed on regular basis and they were taken on a temporary basis as and when the necessity arose, for the purpose of the self-supporting schemes. The learned Government Pleader reiterated the stand taken by the Commissioner of Technical Education in the counter-affidavit filed by him on behalf of the 2nd respondent.
6. As noticed earlier, the University was established by the Act on 1-10-1972. Section 4 of the Act sets out the objects and powers and functions of the' University. The main object being the advancement of learning and knowledge in engineering, technology, physical and social sciences, architecture and fine arts by teaching, research, experimentation or practical training. Its powers and functions relate to the prescription of qualifications for admission into the University, organisation of teaching, research, experimentation, practical training etc., to co-ordinate between the different units of the University, to confer and grant Degrees, "diplomas, certificates and other academic distinctions, to fix, demand and receive fees, subscriptions and deposits etc. The main constraint on the powers of the University to divert ear-marked funds for other purposes received in accordance with Section 20 Sub-section (2) is imposed by Section 20 (b) of the Act, which is in the following terms:
"Section 20(b) "The University shall not divert earmarked funds for other purposes, or revise scales of pay of its staff or implement any scheme which involves any matching contribution from the Government or which imposes a recurring liability on the Government after the assistance from the sponsoring authority ceases without the prior written approval of the Government." It is this provision of law which is relied on by the first respondent to contend that the question of sanctioning regular posts for the self-supporting schemes started by the University does not arise.
7. Admittedly, the petitioners were appointed by the University on a temporary basis to work-in the self-supporting schemes started by the University. These schemes are started by the University on its own, apart from the regular approved schemes. The expenditure for the self-supporting schemes has to be met by the University itself from the 'other funds' mentioned in Section 20 Sub-section (2). The annual accounts of the University shall be submitted by the University Council to the Government under Section 22(1) and the accounts shall be audited and printed and the audit report has to submitted by the Government with the comments of the Council and placed before each House of the State Legislature.
8. It is therefore clear from a reading of Section 20(b) that the University cannot, without the prior written approval of the Government, transfer or divert the earmarked funds for other purposes, or revise scales of pay of its staff or implement any scheme which involves any matching contribution from the Government or which imposes a recurring liability on the Government. The self-supporting schemes In which the petitioners are employed were not approved by the Government as required by Section 20(b) of the Act. When that was the position, the services of the petitioners who were appointed under unapproved schemes, cannot be regularised.
9. Sri Venkata Reddy, learned Counsel for the petitioners, places reliance on Jacob M. Puthuparambil v. Kerala Water Authority , and contended that directions were issued for regularisation of the services of the employees by the Supreme Court in the above case. That was a case in which the petitioners were employed in the Public Health Engineering Department which was transferred to an autonomous body called "Kerala Water Authority" on the enactment of Ordinance No. 14 of 1984. Section 19(1) of the Kerala Water and Waste Water Ordinance "1984 provides for the transfer of the erstwhile employees of the Public Health and Engineering Department of the Government to the Kerala Water Authority. They were therefore, held to be the employees of the Kerala Water Authority after its constitution under the provisions of the concerned Statute. The petitioners in the present case were appointed by the University after its constitution under the Act on a temporary basis under self-supporting schemes started by the University without the approval of the Government The decision referred to above therefore, is of no assistance to the case of the petitioners.
10. The learned Counsel next places reliance on Rabinarayan Mohapatra v. State of Orissa, and Rattanlal v. State of Haryana, AIR 1991 SC 1286 and contended that the appointment of the petitioners on 89 days basis with one-day break smacks of adhocism which was deprecated by the Supreme Court, as insecurity is writ large on the face of the, staff because of the nebulous and unsatisfactory conditions of service and that it is necessary to do away with adhocism in order to make the existing set up effective and efficient. Emphasis was laid by the Supreme Court on the fact that teachers were involved in the case. The apex Court felt that in order to make the existing educational set up effective and efficient, it was necessary to do away with adhocism in 'teaching appointments'. The Supreme Court noticed that the State, under the Constitution, is committed to secure right to education for all citizens, as the bulk of our population is yet illiterate and that till such time illiteracy is effaced from the country, the resolution enshrined in the preamble of the Constitution, cannot be fulfilled. The decision in the above cases holds no parallel with the present case,
11. It was then contended by the learned Counsel that the State or its Instrumentalities should act as model employers in consonance with the Constitutional philosophy and that there is no justification for continuing the present adhocism by the University indefinitely. Reliance was placed on the decision of a Division Bench of this Court in W.A, Nos. 38 and 391/89 and batch dated 2-4-91. That was a case relating to A.P. State Housing Corporation Limited and the petitioners therein were working in the Work Experience Programme and they were recruited on contingent basis on consolidated pay. Vacancies in the posts of Assistant Engineers and Architectural Draftsman under the Work Experience Programme were notified to the employment exchange and selections were made on the basis of written tests and interviews and appointments were made thereof. The learned Judges held that the Asst Engineers under the Work Experience Programme are the same as those that function as regular Asst. Engineers and the incumbents of those posts are inter-transferable. We are unable to come to a similar conclusion in the present case on the facts and circumstances made out by the material placed before the Court. On the question of payment of equal-pay-for-equal-work, the learned Judges held that the functions performed and the duties discharged by the petitioners in that case and the Asst. Engineers appointed on regular basis are of the same nature. In Markendeya v. State of A.P., . The Supreme Court held that the principle of equal-pay-for equal-work, cannot be enforced in abstract, and that the classification made between the Graduate-Supervisors and Non-Graduate Supervisors for the purpose of pay did not amount to discrimination. In Mewa Ram Kanojia v. All India Institute of Medical Sciences, the Supreme Court re-iterated that the classification of the employees for the purpose of fixation of pay scales on the basis of educational qualifications was quite valid and the question of application of the principle of equal-pay-for-equal-work in such cases does not arise. Similarly in Tarsem Lal Gautam v. State Bank of Patiala, 1989 SC 30, the Supreme Court upheld the classification of employees in the same cadre into two grades on the basis of length of service and that the above mentioned principle will not be applicable in cases of such classification. In Umesh Chandra Gupta v. Oil and Natural Gas Commission, 1989 SC 29 the aforesaid principle was held to be not applicable holding that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments in the affidavits of interested parties.
12. Applying the principle enunciated by the Supreme Court, we are of the view that the petitioners, who are working in self-supporting schemes of the University which were not approved by the Government, are not discharging the same duties as that of the regular employees, especially in the absence of any material to show that the duties and functions discharged. by the petitioners are identical with those of the regular employees of the University and the principle of equal-pay-for-equal-word, cannot be applied.
13. Sri Venkata Reddy, next contended that the University should atleast be directed to prepare a scheme for the absorption of the petitioners, as they have been working for the past several years and it is unjust to extract work from them indefinitely on ad-hoc basis. He places reliance on M. Eswar Reddy and Ors. v. The Registrar, Sri Venkateswara University, 1989 (2) ALT 437 and contended that the learned single Judge therein issued such directions to the Government and the University to prepare a scheme for absorption of the petitioners, relying on the decision in Daily R.C. Labour P & T Dept. v. Union of India, . It was argued that 89 regular posts are being created by the University and applications from outsiders are also invited without considering the cases of the petitioners.
14. Sri Subash Reddy, appearing for the University invited our attention to Statute No.14 of the University which requires appointment of employees in open competition after following the procedure of calling for applications by advertisement and by the process of selection. He submitted that the candidates who are in service can be considered and that it is open for the petitioners also to apply and they will be considered, if they are qualified.
In Bhagwati Prasad v. Delhi State Mineral Development Corporation, the Supreme Court observed as follows:
"Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned With, but it is so at the time of the initial entry into the service. Once the appointments of the petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It can be said that three years experience, ignoring artificial break in service for short period/periods created by the management, in the circumstances, would be sufficient for confirmation."
Applying the principles laid down in the above decision, we consider it appropriate that such of those petitioners who have been working for more than three years should be considered for appointment in the regular posts, if they apply for the posts pursuant to notifications to be issued by the respondent - University and if they qualify in accordance with the relevant rules. It is needless to add that such consideration shall be subject to rules or orders of Government relating to reservation of specified categories of persons as they apply to employment in the University.
15. We accordingly direct that the State Government shall take a final decision on the proposal of the University to create additional posts, as far as possible, within a period not exceeding six months from today. The 2nd respondent - University shall consider the case of the petitioners who have, by now, completed three years of service pursuant to provisional appointments, for regular appointment in the posts when they are sanctioned. Such consideration shall be on a preferential basis but subject to qualifications and the rules of reservation. If the other petitioners who are yet to complete three years of service file applications pursuant to the notification to be issued by the University, it shall consider the claims of such persons along with other applicants in accordance with the rules including rules relating to reservation.
The writ petition is allowed to the above extent There shall be no order as to costs.