A.V.Y.L. Narsimha Murthy Vs. Principal Secretary, Govt. of A.P., Revenue (Endowments-iii) Dept. and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - poor home at akkarapalle on 12-6-1978 managed by tirumala tirupathi devastanam (t. poor home on par with the medical and health department of andhra pradesh, but it may be difficult to concede to allow the scale of pay rs. poor home at akkarapalle on 12-6-1978 in the pay scale of rs. he placed strong reliance on the judgments of the apex court in randhir singh v. 1338 dated 15-11-1979 in which it is specifically stated that pay and allowances and other general conditions of service like pension, leave, provident fund governing its officers and servants shall, on no account be more favourable than those applicable to government servants in comparable posts and the committee may adopt the same norms in regard to pay and allowances which are applicable to the government servants from time to time. had already taken a decision that the petitioner is entitled to same pay scales on par with the employees working in the government departments and recommended the case of the petitioner for release of pay scale on par with the government employees. we concede that equation of posts and equation of pay are matters primarily for the executive government, and expert bodies like the pay commission and not for courts but we must hasten to say that where all things are equal that is, where all relevant conditions are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.ordera. gopal reddy, j.1. the petitioner joined as shoe maker in s.v. poor home at akkarapalle on 12-6-1978 managed by tirumala tirupathi devastanam (t.t.d.) in the pay scale of rs. 425-650. the pay scale of shoe maker working in the medical health department of government of andhra pradesh was fixed at rs. 500-800 with effect from 1-4-1978 as per g.o.ms.no. 235, finance and planning (fig-wing) prc-i department, dated 17-9-1979. in view of the same, the petitioner made a representation to the executive officer, t.t.d., 3rd respondent, to fix his pay scale at rs. 500-800 on par with the shoe maker working in the medical and health department, government of andhra pradesh in terms of g.o.ms.no. 235 dated 17-9-1979. the 3rd respondent addressed a letter dated 26-3-1986 to the 1st respondent in that regard. again on 28-6-1987, the 3rd respondent addressed a letter to the 1st respondent requesting the latter to communicate the necessary orders fixing the time-scale of the petitioner. the 1st respondent by a memo dated 19-10-1987 informed the 3rd respondent that it has no objection for adopting the pay scale of 1010-1800 to the shoe maker in s.v. poor home on par with the medical and health department of andhra pradesh, but it may be difficult to concede to allow the scale of pay rs. 500-800 to the petitioner with effect from 1-4-1978, which is assailed in this writ petition.2. in the counter-affidavit filed by the t.t.d. it is stated that the petitioner joined in t.t.d. as shoe maker in s.v. poor home at akkarapalle on 12-6-1978 in the pay scale of rs. 240-10-420. it is stated that as per the revised pay scales, 1986 issued in g.o.ms.no. 288 dated 17-11-1986 the time-scale of pay rs. 1010-1800 was adopted to the post of shoe maker. the petitioner made a representation to the t.t.d. stating that the post of shoe maker, which is an identical post in the medical and health department, government of a.p., was given time-scale of pay rs. 500-800 in terms of g.o.ms.no. 235 dated 17-9-1979. on making such representation, the matter was placed before the trustees of t.t.d. board for adoption of scale of pay rs. 500-800 to the petitioner. the t.t.d. in its resolution no. 835 dated 20-3-1986 approved the proposal for adopting the time-scale of pay in consonance with g.o.ms.no. 235 dated 17-9-1979 and addressed a letter in that regard to the government seeking sanction for adopting of time-scale of pay to the petitioner with retrospective effect. pursuant to the same, the government through the impugned memo dated 19-10-1987 informed that it has no objection for adoption of the time-scale of pay with effect from 17-11-1986, but it cannot concede to allow the scale of rs. 500-800 to the petitioner with effect from 1-4-1978. as the government negatived the proposal, the t.t.d. cannot do anything in the matter. as per rule 7(i) of the t.t.d. service rules, 1989 issued in g.o.ms. no. 1060 revenue (endts.i) department dated 24-10-1989 the pay of the t.t.d. employees would be fixed subject to guidelines issued by the government. therefore, the petitioner is not entitled to time-scale of pay rs. 500-800 as claimed by him.3. it is argued by the learned counsel for the petitioner that as per rule 3.9 of the t.t.d. service rules, 1983 issued in g.o.ms.no. 925 revenue (endts.iii) department dated 18-6-1983 the rules applicable to government servants will apply to the t.t.d. employees also insofar as they are not inconsistent to the act and rules made thereunder. the shoe maker working in the t.t.d. and also in the medical and health department of government of andhra pradesh is discharging the same functions and the qualifications are also same. once the government in g.o.ms.no. 235 dated 17-9-1979 revised the pay scales of shoe maker in the time-scale of pay of rs. 500-800 the same will be governed by the t.t.d. employees also as per sub-rule (9) of rule 3 of the t.t.d. service rules. once the t.t.d. also passed a resolution accepting the claim of the petitioner and sent for approval of the government there is no rationale adopted by the government in denying the pay scale of rs. 500-800 to the petitioner on par with the shoe maker working in the medical and health department, government of a.p. for the period 12-6-1978 to 30-6-1978 (sic. 30-6-1986). the learned counsel also contended that t.t.d. in its circular dated 22-5-1987 stated that the rules applicable to the government servants will apply to the t.t.d. employees also insofar as they are not inconsistent with the act and the rules made thereunder. he also contended that once the government agreed that post of shoe maker in t.t.d. is equal to that of the shoe maker working in the medical and health department, government of andhra pradesh and allowing the revised pay scales from 1986, denying the same for the previous period is arbitrary and illegal and no reasons were assigned for refusal of the same. he placed strong reliance on the judgments of the apex court in randhir singh v. union of india, : (1982)illj344sc , haryana state adhyapak sangh v. state of haryana, : (1995)iiillj710sc and executive officer, t.t.d., tirupathi v. a. vasudevaiah, : 2001(2)ald247 (d.b.).4. on the other hand the learned standing counsel for t.t.d. contended that earlier to the issuance of g.o.no. 925 dated 18-6-1983, the pay and allowances of the t.t.d. employees are governed by g.o.ms.no. 1338 dated 15-11-1979 in which it is specifically stated that pay and allowances and other general conditions of service like pension, leave, provident fund governing its officers and servants shall, on no account be more favourable than those applicable to government servants in comparable posts and the committee may adopt the same norms in regard to pay and allowances which are applicable to the government servants from time to time. if any question arises whether a post in the establishment of the t.t.d. is comparable to a post in any department under the government the question shall be referred to the government and the decision of the government thereon shall be final. this court in w.p.no. 12832 of 1988 held that service conditions of t.t.d. employees will be as per the rules applicable to the government servants. however, that does not necessarily mean that the date of application of pay scale has to be the same in the government service. it is for the employer to decide as to from what date the pay revision shall take effect, though in principle it is accepted that there would be pay revision according to the service conditions existing in the government service. once it is for the employer from what date the revised pay scales have to be paid and as the matter is already referred to the government as per g.o.ms.no. 1338 dated 15-11-1979 the petitioner is not entitled to any relief.5. it is not in dispute that the shoe maker in t.t.d. and the shoe maker in the medical and health department, government of a.p. discharge the same functions. the t.t.d. had already taken a decision that the petitioner is entitled to same pay scales on par with the employees working in the government departments and recommended the case of the petitioner for release of pay scale on par with the government employees. in fact, the t.t.d. service conditions, 1983 issued in g.o.ms.no. 925 and also t.t.d. employees service rules, 1989 issued in g.o.ms.no. 1060 dated 24-10-1989 specifically states that t.t.d. employees shall be governed by the rules of the government servants as amended from time to time in so far as they are not inconsistent with the act and rules made thereunder. g.o.ms.no. 1338 dated 15-11-1979 also contemplates that the t.t.d. may adopt the same norms with regard to pay and allowances which are applicable to the government servants from time to time, but on no account, be more favourable than those applicable to government servants in comparable posts. by adopting the same scales, it cannot be said that they are more favourable than those applicable to the government servants in comparable posts.6. the apex court in randhir singh's case (1 supra) while considering the equal pay for equal work of the drivers in the police force on par with the drivers of other departments in para-6 held as follows:'.......- we concede that equation of posts and equation of pay are matters primarily for the executive government, and expert bodies like the pay commission and not for courts but we must hasten to say that where all things are equal that is, where all relevant conditions are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments...'7. in haryana state adhyapak sangh's case (2 supra) the apex court held that the teachers of aided private schools must be paid in parity with the teachers of government schools.8. this court in a. vasudevaiah's case (3 supra) after considering the judgment of the apex court in kshetriya kisan gramin bank v. d.b. sharma, air 2001 sc 168 held as follows;'.......but there cannot also be any doubt whatsoever that where the conditions of service of an employee are governed by a statute or statutory rule, the same must be fully given effect to. payment of salary and allowances to an employee amounts to right of property within the meaning of article 300-a of the constitution of india. the state in exercise of statutory power, having conferred a right upon the respondent herein to have the same salary and allowances which is payable to the employees of a university or government if the institution is affiliated thereto, we see no reason as to why the respondent herein shall be deprived therefrom.'9. in view of the same, it is established that the petitioner is discharging similar functions as that of the shoe maker working in the medical and health department, government of a.p. therefore, the petitioner is entitled to same time-scale of pay on par with the shoe maker working in the government for which the t.t.d. had already decided to grant the said pay scale. when once the government decided that the post of shoe maker in t.t.d. is equal to that of shoe maker working in the medical and health department, government of andhra pradesh and allowed revised pay scale from 1986 on par with, denying the same for the previous period is not justified, and by allowing the same, it is in no way favourable than those applicable to government servants in comparable posts.10. in that view of the matter, the rejection order of the government without assigning any reasons cannot be sustainable and the same is accordingly quashed. it is held that the petitioner is entitled to time-scale of pay rs. 500-800 with effect from 12-6-1978 to 30-6-1986. the petitioner's pay has to be fixed accordingly and whatever benefits accrue shall be granted to him.11. the writ petition is accordingly allowed. no costs.

Judgment:
ORDER

A. Gopal Reddy, J.

1. The petitioner joined as Shoe Maker in S.V. Poor Home at Akkarapalle on 12-6-1978 managed by Tirumala Tirupathi Devastanam (T.T.D.) in the pay scale of Rs. 425-650. The pay scale of Shoe Maker working in the Medical Health Department of Government of Andhra Pradesh was fixed at Rs. 500-800 with effect from 1-4-1978 as per G.O.Ms.No. 235, Finance and Planning (FIG-Wing) PRC-I Department, dated 17-9-1979. In view of the same, the petitioner made a representation to the Executive Officer, T.T.D., 3rd respondent, to fix his pay scale at Rs. 500-800 on par with the Shoe Maker working in the Medical and Health Department, Government of Andhra Pradesh in terms of G.O.Ms.No. 235 dated 17-9-1979. The 3rd respondent addressed a letter dated 26-3-1986 to the 1st respondent in that regard. Again on 28-6-1987, the 3rd respondent addressed a letter to the 1st respondent requesting the latter to communicate the necessary orders fixing the time-scale of the petitioner. The 1st respondent by a Memo dated 19-10-1987 informed the 3rd respondent that it has no objection for adopting the pay scale of 1010-1800 to the Shoe Maker in S.V. Poor Home on par with the Medical and Health Department of Andhra Pradesh, but it may be difficult to concede to allow the scale of pay Rs. 500-800 to the petitioner with effect from 1-4-1978, which is assailed in this writ petition.

2. In the counter-affidavit filed by the T.T.D. it is stated that the petitioner joined in T.T.D. as Shoe Maker in S.V. Poor Home at Akkarapalle on 12-6-1978 in the pay scale of Rs. 240-10-420. It is stated that as per the revised pay scales, 1986 issued in G.O.Ms.No. 288 dated 17-11-1986 the time-scale of pay Rs. 1010-1800 was adopted to the post of Shoe Maker. The petitioner made a representation to the T.T.D. stating that the post of Shoe Maker, which is an identical post in the Medical and Health Department, Government of A.P., was given time-scale of pay Rs. 500-800 in terms of G.O.Ms.No. 235 dated 17-9-1979. On making such representation, the matter was placed before the trustees of T.T.D. Board for adoption of scale of pay Rs. 500-800 to the petitioner. The T.T.D. in its Resolution No. 835 dated 20-3-1986 approved the proposal for adopting the time-scale of pay in consonance with G.O.Ms.No. 235 dated 17-9-1979 and addressed a letter in that regard to the Government seeking sanction for adopting of time-scale of pay to the petitioner with retrospective effect. Pursuant to the same, the Government through the impugned Memo dated 19-10-1987 informed that it has no objection for adoption of the time-scale of pay with effect from 17-11-1986, but it cannot concede to allow the scale of Rs. 500-800 to the petitioner with effect from 1-4-1978. As the Government negatived the proposal, the T.T.D. cannot do anything in the matter. As per Rule 7(i) of the T.T.D. Service Rules, 1989 issued in G.O.Ms. No. 1060 Revenue (Endts.I) Department dated 24-10-1989 the pay of the T.T.D. employees would be fixed subject to guidelines issued by the Government. Therefore, the petitioner is not entitled to time-scale of pay Rs. 500-800 as claimed by him.

3. It is argued by the learned Counsel for the petitioner that as per Rule 3.9 of the T.T.D. Service Rules, 1983 issued in G.O.Ms.No. 925 Revenue (Endts.III) Department dated 18-6-1983 the rules applicable to Government servants will apply to the T.T.D. employees also insofar as they are not inconsistent to the Act and rules made thereunder. The Shoe Maker working in the T.T.D. and also in the Medical and Health Department of Government of Andhra Pradesh is discharging the same functions and the qualifications are also same. Once the Government in G.O.Ms.No. 235 dated 17-9-1979 revised the pay scales of Shoe Maker in the time-scale of pay of Rs. 500-800 the same will be governed by the T.T.D. employees also as per Sub-rule (9) of Rule 3 of the T.T.D. Service Rules. Once the T.T.D. also passed a resolution accepting the claim of the petitioner and sent for approval of the Government there is no rationale adopted by the Government in denying the pay scale of Rs. 500-800 to the petitioner on par with the Shoe Maker working in the Medical and Health Department, Government of A.P. for the period 12-6-1978 to 30-6-1978 (sic. 30-6-1986). The learned Counsel also contended that T.T.D. in its Circular dated 22-5-1987 stated that the Rules applicable to the Government servants will apply to the T.T.D. employees also insofar as they are not inconsistent with the Act and the rules made thereunder. He also contended that once the Government agreed that post of Shoe Maker in T.T.D. is equal to that of the Shoe Maker working in the Medical and Health Department, Government of Andhra Pradesh and allowing the revised pay scales from 1986, denying the same for the previous period is arbitrary and illegal and no reasons were assigned for refusal of the same. He placed strong reliance on the judgments of the Apex Court in Randhir Singh v. Union of India, : (1982)ILLJ344SC , Haryana State Adhyapak Sangh v. State of Haryana, : (1995)IIILLJ710SC and Executive Officer, T.T.D., Tirupathi v. A. Vasudevaiah, : 2001(2)ALD247 (D.B.).

4. On the other hand the learned Standing Counsel for T.T.D. contended that earlier to the issuance of G.O.No. 925 dated 18-6-1983, the pay and allowances of the T.T.D. employees are governed by G.O.Ms.No. 1338 dated 15-11-1979 in which it is specifically stated that pay and allowances and other general conditions of service like pension, leave, provident fund governing its officers and servants shall, on no account be more favourable than those applicable to Government servants in comparable posts and the Committee may adopt the same norms in regard to pay and allowances which are applicable to the Government servants from time to time. If any question arises whether a post in the establishment of the T.T.D. is comparable to a post in any department under the Government the question shall be referred to the Government and the decision of the Government thereon shall be final. This Court in W.P.No. 12832 of 1988 held that service conditions of T.T.D. employees will be as per the rules applicable to the Government servants. However, that does not necessarily mean that the date of application of pay scale has to be the same in the Government service. It is for the employer to decide as to from what date the pay revision shall take effect, though in principle it is accepted that there would be pay revision according to the service conditions existing in the Government service. Once it is for the employer from what date the revised pay scales have to be paid and as the matter is already referred to the Government as per G.O.Ms.No. 1338 dated 15-11-1979 the petitioner is not entitled to any relief.

5. It is not in dispute that the Shoe Maker in T.T.D. and the Shoe Maker in the Medical and Health Department, Government of A.P. discharge the same functions. The T.T.D. had already taken a decision that the petitioner is entitled to same pay scales on par with the employees working in the Government departments and recommended the case of the petitioner for release of pay scale on par with the Government employees. In fact, the T.T.D. Service Conditions, 1983 issued in G.O.Ms.No. 925 and also T.T.D. Employees Service Rules, 1989 issued in G.O.Ms.No. 1060 dated 24-10-1989 specifically states that T.T.D. employees shall be governed by the Rules of the Government servants as amended from time to time in so far as they are not inconsistent with the Act and rules made thereunder. G.O.Ms.No. 1338 dated 15-11-1979 also contemplates that the T.T.D. may adopt the same norms with regard to pay and allowances which are applicable to the Government servants from time to time, but on no account, be more favourable than those applicable to Government servants in comparable posts. By adopting the same scales, it cannot be said that they are more favourable than those applicable to the Government servants in comparable posts.

6. The Apex Court in Randhir Singh's case (1 supra) while considering the equal pay for equal work of the drivers in the police force on par with the drivers of other departments in para-6 held as follows:

'.......- We concede that equation of posts and equation of pay are matters primarily for the executive Government, and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant conditions are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments...'

7. In Haryana State Adhyapak Sangh's case (2 supra) the Apex Court held that the teachers of aided private schools must be paid in parity with the teachers of Government schools.

8. This Court in A. Vasudevaiah's case (3 supra) after considering the judgment of the Apex Court in Kshetriya Kisan Gramin Bank v. D.B. Sharma, AIR 2001 SC 168 held as follows;

'.......But there cannot also be any doubt whatsoever that where the conditions of service of an employee are governed by a statute or statutory rule, the same must be fully given effect to. Payment of salary and allowances to an employee amounts to right of property within the meaning of Article 300-A of the Constitution of India. The State in exercise of statutory power, having conferred a right upon the respondent herein to have the same salary and allowances which is payable to the employees of a University or Government if the institution is affiliated thereto, we see no reason as to why the respondent herein shall be deprived therefrom.'

9. In view of the same, it is established that the petitioner is discharging similar functions as that of the Shoe Maker working in the Medical and Health Department, Government of A.P. Therefore, the petitioner is entitled to same time-scale of pay on par with the Shoe Maker working in the Government for which the T.T.D. had already decided to grant the said pay scale. When once the Government decided that the post of Shoe Maker in T.T.D. is equal to that of Shoe Maker working in the Medical and Health Department, Government of Andhra Pradesh and allowed revised pay scale from 1986 on par with, denying the same for the previous period is not justified, and by allowing the same, it is in no way favourable than those applicable to Government servants in comparable posts.

10. In that view of the matter, the rejection order of the Government without assigning any reasons cannot be sustainable and the same is accordingly quashed. It is held that the petitioner is entitled to time-scale of pay Rs. 500-800 with effect from 12-6-1978 to 30-6-1986. The petitioner's pay has to be fixed accordingly and whatever benefits accrue shall be granted to him.

11. The writ petition is accordingly allowed. No costs.