Andhra Pradesh High Court - Amravati
Y. Hanuma Devi, vs State Of Andhra Pradesh on 27 September, 2022
THE HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION Nos.27799 + 26030 and 20360 OF 2022 ORDER:
Writ Petition No. 27799 of 2022 is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action of the 3rd respondent in transferring the petitioners vide orders dated 12.08.2022 as illegal, arbitrary and violative of transfer guideline issued vide G.O.Rt.No.103, School Education Department, dated 29.06.2022, and the action of respondents 1 and 2 in proposing such transfer without implementing the minimum of the time scales, in the revised pay scales 2022 as provided for under G.O.Ms.No.24, Finance Department dated 18.02.2019, G.O.Ms.No.40 Finance Department, dated 18.06.2021 and G.O.Ms.No.5 Finance Department dated 17.01.2022 in respect contract employees working in Kasturba Gandhi Balika Vidyalaya (KGBV), which includes the writ petitioners as arbitrary, illegal and violative of Articles 14 and 21 of Constitution of India apart from being violative of terms of Contract of Employment entered with the petitioners and consequently to direct the respondents to set aside the transfer order issued by the 3rd respondent vide proceedings of the District Educational Officer, dated 12.08.2022 and to pay the petitioners the minimum of time scale in the Revised Pay Scales 2022 along with arrears and revert to the previous working places of the petitioners till such time and to pass such other orders...."
Writ Petition No. 26030 of 2022 is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action of the respondents in seeking to transfer/transferring the petitioners pursuant to 2 G.O.Rt.No.103, School Education Department dated 29.06.2022, without implementing minimum of the time scales, in the revised pay scales 2022 as provided for under G.O.Ms.No.24, Finance Department dated 18.02.2019, G.O.Ms.No.40 Finance Department, dated 18.06.2021 and G.O.Ms.No.5 Finance Department dated 17.01.2022 in respect contract employees working in Kasturba Gandhi Balika Vidyalaya (KGBV), which include the writ petitioners as arbitrary, illegal and violative of Articles 14 and 21 of Constitution of India apart from being violative of terms of Contract of Employment entered into between the petitioners and the 3rd respondent and consequently to direct the respondents to pay the petitioners the minimum of time scale in the Revised Pay Scales 2022 along with arrears and not to take up transfers of the petitioners till such time and pass such other orders...."
Writ Petition No. 20360 of 2022 is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action of the respondents in seeking to transfer the petitioners pursuant to G.O.Rt.No.103, School Education Department dated 29.06.2022, without implementing minimum of the time scales, in the revised pay scales 2022 as provided for under G.O.Ms.No.24, Finance Department dated 18.02.2019, G.O.Ms.No.40 Finance Department, dated 18.06.2021 and G.O.Ms.No.5 Finance Department dated 17.01.2022 in respect contract employees working in Kasturba Gandhi Balika Vidyalaya (KGBV), which include the writ petitioners as arbitrary, illegal and violative of Articles 14 and 21 of Constitution of India apart from being violative of terms of Contract of Employment entered into between the petitioners and the 3rd respondent and consequently to direct the respondents to pay the petitioners the minimum of time scale in the Revised Pay Scales 2022 along with arrears and not to take up transfers of the petitioners till such time and pass such other orders...."3
2. Since the facts and issue involved in both the writ petitions is one and the same, I find it expedient to decide both the matters by common order.
3. For the sake of convenience, W.P.No. 18489 of 2012 is taken as leading case.
4. Heard Mr. A.S.K.S.Bhargav, Gundala Siva Prasada Reddy, and Mr. N.V.Sumanth, learned counsel for the petitioners and Mr. K.V.Raghuveer, learned Standing Counsel for Samagra Shiksha, appearing for the respondents.
5. The brief case of the petitioners is that they were appointed on contract basis for one year as Principals, Contract Residential Teachers (CRT) Physical Education Teachers (PET) etc., and their appointments were made to sign a Contract of Employment with duration of 11 months or till the last day of April whichever is earlier. On completion of said period, the contract of employment was terminated and they were reengaged with effect from 2nd day of May, which is being repeated in every year. The petitioners have put in about 9 years of service from the date of their initial appointment and they are being treated as tenure appointees working on contract basis. The Government vide G.O.Ms.No.24, dated 18.02.2019 ordered extension of minimum of time scales to the contract employees of Universities, Societies, 4 KGVB and Model Schools in revised pay scales, 2015, in which the employees are working on par with the contract employees covered in G.O.Ms.No.12, dated 28.10.2019, subject to adhering the guidelines stipulated therein with effect from 01.04.2019. The Government also issued G.O.Ms.No.40, dated 18.06.2021 has issued comprehensive orders regarding the remuneration and other benefits to be paid to the persons, who have been appointed on contract basis. Despite the said G.Os, directing payment of minimum of the time scale to principals and teachers working in KGVB, till date the said orders have not been implemented. The Government implemented the same in all Government Departments including the Model Schools, except KGVB, which is illegal and arbitrary. The petitioners made several representations to the respondents requesting to implement the G.Os and fix the minimum of the time scale to them, but in vain. Hence the writ petition came to be filed.
6. Per contra, the 3rd respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that the Government has issued instructions in G.O.Ms.No.5, dated 17.01.2022 for extension of minimum time scale to the contract employees where in Kasturba Gandhi Balika Vidyalayas (KGBVs) was also mentioned in the subject. However as they were not fulfil the conditions prescribed in the G.Os, they are 5 not eligible for minimum time scale. In view of the representations submitted by the employees working in KGBVs, the Government have issued permission and guidelines for online transfers of teaching staff working therein vide G.O.Rt.No.103, dated 29.06.2022. As per the orders of this Court dated 01.08.2022 a revised schedule has been issued, duly extending the date from 03.08.2022 to 05.08.2022 for receiving grievance from the teaching staff and the same were placed before the District Level for verification as per the G.O.Rt.No.103, dated 29.06.2022. As per revised schedule, grievances were received for inclusion of points, all the grievances were verified and disposed of and final seniority list was prepared and displayed at District Level Cadre wise and subject wise.
7. It is further contended that the petitioners have applied for transfers and exercised options and as per their options the transfer orders were issued by the concerned District Educational Officers of the District concerned and relieved from the previous KGBVs and joined in the new KGBVs allotted to them. In the meantime the petitioners approached this Court on the ground of minimum time scale is applied to the petitioners, the respondents are not supposed to transfer. As per G.O.Ms.No.40, it is clear that minimum time scales is applicable only to those candidates who were appointed on contract basis against the sanctioned posts. In 6 the case of the petitioners, they were engaged under the society and they are paid honorarium only. Therefore the writ petition is not maintainable and same is liable to be dismissed.
8. During hearing learned counsel for the petitioners relied on the decision of the Hon'ble Supreme Court in the case of "State of Punjab Vs. Jagjit Singh1. Wherein the Hon'ble Apex Court discussed various aspects considered by the various Hon'ble Courts and held as follows:
"42.2. The mere fact that the subject post occupied by the claimant is in a "different department" vis-à-vis the reference post does not have any bearing on the determination of a claim under the principle of "equal pay for equal work". Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government (see Randhir Singh Case and D.S.Nakara Case).
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42.5. In determining equality of functions and responsibilities under the principle of "equal pay for equal work", it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible ( See Federation of All India Customs and Central Excise Stenographers case and SBI's case). The nature of work of the subject post volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity 1 2017(1) SCC 148 7 cannot be claimed under the principle of "equal pay for equal work".....
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44.4. In Daily Rated Casual Labour case, this Court held, that under the principle flowing from Article 38(2) of the Constitution, the Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, along with dearness allowance and additional dearness allowance, as well as, all the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories for payment of wages at different rates, was not tenable. It was also held, that such an act of an employer would amount to exploitation. And further that the same would be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.
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49.1 We are of the considered view, that in Para 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity and regularization in service. It was held, that on the issue of pay parity, the concept of "equality" would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of "equality" could not be invoked for absorbing temporary employees in government service, or for making temporary employees regular/ permanent. All the observations made in the above- extracted paragraphs, relate to the subject of regularization/ permanence, and not, to the principle of "equal pay for equal work". As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good by making such a direction.
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54.1. A perusal of the above conclusion drawn in the impugned judgment (passed by the Full Bench), reveals that the Full Bench carved out an exception for employees, who were not appointed against regular sanctioned posts, if their services had remained continuous (with notional breaks, as well) for a period of 10 years. This category of temporary employees was extended the benefit of wages at the minimum of the regular pay scale. In Umadevi case, similarly, employees who had rendered 10 years service were granted an exception (refer to para 53 of the judgment extracted in the proceeding paragraph). The above position adopted by the High Court reveals, that the High Court intermingled the legal position determined by this Court on the subject of regularization of employees, while adjudicating upon the proposition of pay parity, emerging employees, while adjudicating upon the proposition of pay parity, emerging under the principle of "equal pay for equal work". In our view, it is this mix-up, which has resulted in the High Court recording its afore- extracted conclusions".
54.2. The High Court extended different wages to temporary employees by categorizing them on the basis of their length of service. This is clearly in the teeth of the judgment in Daily Rated Casual Labour case. In the above judgment, this Court held that classification of employees based on their length of service (those who had not completed 720 days of service, in a period of 3 years; those who had completed more than 720 days of service- with effect from 01.04.1977; and those who had completed 1200 days of service0, for payment of different levels of wages (even though they were admittedly discharging the same duties), was not tenable. The classification was held to be violative of Articles 14 and 16 of the Constitution.
9. It is contended by the learned counsel for the petitioners that the Hon'ble Apex Court rightly held in the decision cited supra that there is no room for any doubt that the principle of "equal pay 9 for equal work" has emerged from an interpretation of different provisions of the Constitution, which is binding in this case also. The parameters of the principle have been extended to the temporary employees viz., contract, casual, ad hoc etc., and therefore in the case of the petitioners also, they are eligible and entitled for the relief as claimed in the writ petition.
10. Learned Standing Counsel for the respondents placed on record the G.O.Rt.No.103, School Education (Prog-II) Department, dated 29.06.2022, wherein it is mentioned with regard to Criteria for Transfer, which reads as follows:
Criteria for Transfer:-
1. The transfers will be effect for Teaching Staff in all the KGBVs erstwhile districts.
2. The Teaching Staff i.e Principal, CRTs, PETs and PGTs who have completed 2 years of service at a station as on 31.05.2022 shall be eligible to apply for request transfer.
3. In respect of Principals of the KGBVs who have completed 5 years of service shall be transferred compulsorily.
4. In respect of CRTs, PETs who have completed 8 years of service as on 31.05.2022 in a particular KGBV shall be transferred compulsorily.
5. The number of years of service completed in a particular KGBV, in a particular cadre should be taken into consideration.10
6. The KGBV teaching staff who are transferred on disciplinary and administrative grounds previously shall not be considered for transfer at present.
7. Transfer shall be made within the District only.
8. In respect of the Inter-District transfer, transfer should be considered on mutual grounds.
11. Learned Standing Counsel for the respondents would contend that as per G.O.Rt.No.103, dated 29.06.2022, the case of the petitioners shall not be considered as per Criteria for Transfer cited supra. The petitioners and also the respondents shall bound to follow the guidelines as stated and vehemently opposed to grant relief in favour of the petitioners.
12. Whereas learned counsel for the petitioners would contend that as per "State of Punjab Vs. Jagjit Singh' case (cited supra), the petitioners are eligible and they are entitled for minimum of time scales under the principle of "equal pay for equal work. As per Article 38(2) of the Constitution, the Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, along with dearness allowance and additional dearness allowance, as well as, all the other benefits which were being extended to casual workers. Therefore doing the same work, into different categories for payment of wages at different rates, was not tenable, and same is violative of Articles 14 and 16 of the Constitution. 11
13. It is further contended that as per Paragraph 54.2 of the "State of Punjab Vs. Jagjit Singh' case (cited supra), the High Court extended different wages to temporary employees by categorizing them on the basis of their length of service. This is clearly in the teeth of the judgment in "Daily Rated Casual Labour Vs. Union of India"2 In the above judgment, this Hon'ble Apex Could held that classification of employees based on their length of service (those who had not completed 720 days of service, in a period of 3 years; those who had completed more than 720 days of service- with effect from 01.04.1977; and those who had completed 1200 days of service, for payment of different levels of wages (even though they were admittedly discharging the same duties), was not tenable. The classification was held to be violative of Articles 14 and 16 of the Constitution.
14. Therefore, learned counsel for the petitioners draws the attention of this Court to consider the case of the petitioners for fixation of minimum of time scale pay in the Revised Pay Scales, 2022 along with arrears by considering the factual aspects and counting the service of the petitioners as per rule laid down in the case of Jagjit Singh and Others case (cited supra).
15. No doubt, it is settled principle as per "State of Punjab Vs. Jagjit Singh' case (cited supra) under the principle of "equal 2 (1988) 1 SCC 122 =2988 SCC (L & S) 138 12 pay for equal work" and the petitioners are working about 10 years on contract basis and the petitioners in principle are not opposed to the decision of the 1st respondent to introduce transfers in KGBVs even in respect of contract employees. However, such exercise should be taken up after implementation of at least the minimum of time scales so as to offset the impact of such transfers on the petitioners.
16. The 2nd respondent issued Memo No. ESE01- SEDN0SPD/27/2020-2, dated 29.07.2021, wherein in Para 2 it is stated as follows:
"2.........Whereas, the contract employees working in KGBVs were appointed without concurrence of the Government in Finance Department as the honorarium and other allowances are being paid as per approved provisions in the Annual Work Plan and Budget of Government of India. Therefore, the contract employees of KGBVs are not eligible for minimum of time scale in RPS, 2015, as they have not fulfilled the conditions governing sanction of minimum of time scale in RPS, 2015 as per the orders issued in the G.O.Ms.No.24, (HR.I.Plg & Policy) Dept., dated 18.02.2019 read with G.O.Ms.No.12, Finance (HR.1 Plg & Policy) Department, dated 28.01.2019.
Subsequently G.O.Ms.No.5, dated 17.01.2022 issued, which reads as follows:
"4. The Government, after careful examination, hereby order for the extension of Minimum of Time Scale (MTS) in Revised Pay Scales, 2022 w.e.f 01.01.2022 (January 2022 Pay) to the Contract employees engaged in the Government Departments, Universities, Societies, KGBV and Model Schools in 13 the respective relevant posts in which the employees are working.
Subsequently, the 3rd respondent addressed a letter vide Lr.Rc.No.28/ KGBV/SS/2022, dated 24.04.2022 to the Principal Secretary to Government, Finance Department, Government of A.P, wherein it is stated as follows:
"In this regard it is submitted that in G.O.Ms.No.40, dated 18.06.2021, point 7(A) specified that "Payment of Minimum of Time Scale (MTS) in Revised Pay Scales 2015 to the Contractual employees engaged in the Government Departments, Universities, Societies, KGBV and Model Schools" and the point 7(A)(d) specified that "extension of MTS is applicable to those contract employees, who have been appointed against the vacant sanctioned posts and for those who have been appointed by the specific Government orders issued with the concurrence of Government in Finance Department".
17. Therefore once G.O is issued with certain guidelines, the respondent authorities shall obey the same. But in this case the 3rd respondent addressed a letter dated 24.04.2022 to the Government stating the reasons as mentioned above, which is untenable.
18. It is contended by the respondents that the petitioners made a representation to the Government requesting to effect mutual transfers in the existing vacancies, which is not correct. It is a fact that a representation 06.12.2021 made by Progressive Democratic Front, wherein one Vitapu Balasubramanyam and four others, who are MLCs with a request to fill up the existing vacancies on mutual grounds, but not the petitioners. Therefore 14 the petitioner never requested the respondents to effect mutual transfers in the existing vacancies.
19. This Court finds that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Such act besides being demeaning, strikes at the very foundation of human dignity. Any act of paying less wages as compared to other similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position.
20. Having regard to the facts and circumstances of the case, upon perusal of the material on record and considering the submissions of the learned counsel, this Court has no hesitation in holding that all the petitioners in the present batch matters would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.
21. Accordingly, the Writ Petitions are disposed of, while directing the respondents to pay the petitioners the minimum of time scale in the Revised Pay Scales-2022 along with arrears, within a period of six (06) weeks from the date of receipt of a copy of this order. It is made clear that the transfers already effected cannot be disturbed for the reason that the candidates, who are in the post of those petitioners, who got transferred will be effected 15 and they are not parties to these proceedings. Among several employees, who are already got transferred; only few of them are before this Court, for which reason the entire proceedings cannot be reverted. The stay which was granted in W.P.No.20360 of 2022 not to effect transfers shall be continued and those petitioners would remand at their own places. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________ DR.K. MANMADHA RAO, J Date: 27.09.2022 KK 16 THE HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION Nos.27799 + 26030 and 20360 OF 2022 Date: 27.09.2022 KK