IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 19832 of 1999 Between: N.V.S. Murthy, S/o. Late N.V.Krishna Murthy, Sri Lakshmi Ganapathi Degree College, Vizinagaram. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by the Secdretary, Higher Eduction Department, Secretariat, Hyderabad. 2 The Commissioner, Collegiate Education, Government of Andhra Pradesh, Hyderabad. 3 The President & Correspondent , Sri Lakshmi Ganapathi Degree College, Dharmapuri , Vizinagaram District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or order or direction in the nature of Writ of Mandamus directing the respondents to pay the salary to the petitioner in the pay scale (i.e. rs.3640-7580) and (Rs.6950-14,425/- from 1-4-1999) as prescribed by the State Government for a Government Degree College, Lecturer w.e.f.4-9-1997 with all consequential arrears (less conslidated pay received) and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.M.JAGANNATHA SARMA Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.19832 OF 1999 O R D E R The petitioner seeks payment of salary as per State Government pay scales from 04.09.1997, being the date of his regular appointment as a Lecturer in the 4th respondent college. He also seeks consequential arrears after deducting the consolidated pay received by him during the period. The 4th respondent college is a private unaided college in Vizianagaram District. The petitioner worked as a part time Mathematics lecturer in the said college from 01.07.1993 and from the year 1994 he worked as a full time lecturer, but was paid remuneration on a consolidated pay basis. Thereafter, he was appointed on a regular basis as a Mathematics lecturer in the 4th respondent college by proceedings dated 04.09.1997 after he was selected by a Selection Committee constituted as per the provisions of G.O.Ms.No.119, Education (CE1-2) Department, dated 22.03.1991. The appointment order dated 04.09.1997 states as hereunder: “On the recommendations of the Selection Committee (Six-men Committee), Mr.N.V.S.Murthy, has been selected as a Lecturer in Mathematics. His appointment is on full-time basis and he will be paid as per the scales prescribed by the Government. He is requested to join in the duty forthwith and submit the joining report.” The grievance of the petitioner is that in spite of the appointment order stating to the effect that he would be paid the scales prescribed by the Government, he was continued in service on a consolidated pay of Rs.1,500/- per month without any remuneration for summer vacations. The petitioner further stated that by notice dated 31.03.1999, he along with other lecturers were relieved of their duties with effect from that date, but were asked to attend the work of invigilation and practicals. Thereafter, in June, 1999, after reopening of the college, some of the lecturers were asked to join duty, but the petitioner did not receive any such instructions. Thereupon, he met the college authorities and was asked to resume duty. But again, he was paid only Rs.1,500/- per month. The petitioner further stated that he submitted representations dated 29.08.1998 and 23.07.1999 to the college authorities in this regard, but to no avail. Hence, this writ petition. In its counter, the college admitted that the petitioner was selected as a lecturer in Mathematics and appointed on regular basis under proceedings dated 04.09.1997, but, according to the college the same was subject to his acquiring a Master’s Degree in Mathematics with 55%. It is stated that the Selection Committee made it clear to the petitioner that he would be replaced by a qualified person if he did not acquire the said qualification within the stipulated time. But the petitioner failed to acquire the qualification in spite of the lapse of two years. This is the reason why the college did not ask the petitioner to resume duties in June, 1999. However, upon his request to consider his case for continuation on consolidated pay, the college continued the petitioner on humanitarian grounds. The college further stated that upon the representation made by the petitioner on 23.07.1999, he was called and shown the condition prescribed by the Selection Committee and thereupon, the petitioner himself withdrew his representation and requested the college not to take any action against him. With regard to the petitioner’s earlier representation along with others dated 29.08.1998 requesting enhancement of salaries, the college stated that the same was withdrawn after the financial position of the college was explained to the lecturers. It is pointed out that the petitioner was one of the signatories to the letter dated 10.09.1998 withdrawing the request for enhancement of salaries. The college accordingly denied the entitlement of the petitioner for the relief sought by him in this writ petition. In his reply, the petitioner denied that his appointment on a regular basis was subject to any condition. He stated that he was the only candidate who attended the interview before the Selection Committee on 07.07.1997 and according to the Standing Orders of the Andhra University, which are applicable to the college, the qualifications prescribed for a Mathematics lecturer, in the order of preference, are as hereunder: (1) M.A. (Mathematics) (2) M.Sc. (Applied Mathematics) (3) M.Sc. (Statistics) The petitioner stated that he possessed the qualification of M.Sc. (Statistics) with Statistics as the subject in all the years of his study in M.Sc. He therefore contended that as no other candidate with a higher qualification as per the order of preference was available, the Selection Committee had selected him being fully satisfied with his eligibility as per the norms. The petitioner pointed out that the stand taken by the college was contrary to the unconditional appointment order dated 04.09.1997. He relied upon the instance of other lecturers with an alternative qualification, in terms of the order of preference, being appointed and continued in the college. He denied the other allegations made by the college in its counter with regard to his being continued on humanitarian grounds or his acquiescence with the payment of consolidated salary. With regard to the withdrawal of the joint representation for enhancement of salaries, the petitioner stated that in the light of the threatening endorsement made by the college upon the representation dated 29.08.1998, the lecturers were left with no alternative, but to submit the apology letter dated 10.09.1998. The petitioner, however, claims that the same does not estop him from seeking the relief prayed for in this writ petition. Thereupon, the college filed an additional counter-affidavit seeking to rebut the averments made by the petitioner in his reply. The college reiterated that the Selection Committee had prescribed the condition that the petitioner should acquire the degree of M.Sc. (Mathematics) within two years from the date of his selection. The college also tried to explain the instances cited by the petitioner with regard to other similarly situated lecturers being appointed and continued by the college. In the case of one lecturer, it is stated that the lecturer concerned was working in the junior college and accordingly, the qualification was held to be sufficient, whereas in the case of the other lecturer who was appointed in September/October, 1992, it is stated that the lecturer himself left the college in the year 1997 as he was unable to acquire the additional qualification insisted upon by the college. It is stated further that the management, which has to take a decision regarding the appointment of a lecturer, reaffirmed the Selection Committee’s condition of an additional qualification. The college therefore concluded by stating that the appointment of the petitioner was temporary and subject to the condition aforestated with regard to his acquiring M.Sc. in Mathematics. His entitlement to pay scales on par with the Government lecturers was therefore denied and the college prayed for dismissal of the writ petition. Heard Sri M.Jagannatha Sarma, learned counsel for the petitioner and Smt.M.Bhaskara Lakshmi, learned counsel for the college. Sri Jagannatha Sarma, learned counsel, stressed upon the fact that the appointment order dated 04.09.1997 neither speaks of any condition with regard to acquisition of a further qualification nor does it make the appointment of the petitioner subject to any such condition. The appointment order, on the other hand, clearly demonstrates the entitlement of the petitioner to be paid Government scales. The learned counsel pointed out that the college itself admitted that his client had been selected by a duly constituted Selection Committee on a regular basis and could not therefore be permitted to allege that the appointment of the petitioner was a conditional one when the appointment order does not state so. The learned counsel pointed out that the minutes of the Selection Committee produced by the college would clearly show that the handwritten endorsement to the effect that the petitioner was selected subject to his qualifying in M.Sc. Mathematics with 55% does not indicate as to who signed it. Further, the typewritten script of the minutes merely states that ‘N.V.S.Murthy is selected’. The learned counsel would contend that had it been the intention of the Selection Committee to make such appointment conditional, it would have been stated so in the typewritten portion of the minutes itself and it would not have been necessary to do so by way of a handwritten endorsement, which was not even signed by all the members of the Selection Committee. The learned counsel asserted that his client was never put on notice about such condition being attached to his appointment as a lecturer on regular basis. The learned counsel also pointed out that his client was fully qualified as per the Standing Orders of the University, though his qualification may have been third in the order of preference. He relied upon Rule 7(4) of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 (for short, ‘the Rules’) in support of his contention that his client was entitled to be paid salary as per the Government scales. The learned counsel placed reliance on various judgments in support of his contentions. Refuting the above arguments, Smt.Bhaskara Lakshmi, learned counsel for the college, reiterated that the petitioner’s appointment was conditional upon his acquiring the qualification of M.Sc. in Mathematics. She admitted that the order of appointment dated 04.09.1997 does not state so, but contended that the conduct of the petitioner would clearly demonstrate that he was aware of such a condition being attached to his appointment. She pointed out that the petitioner, being aware of the contents of the appointment order dated 04.09.1997 to the effect that he was entitled to Government scales, would not have continued on a consolidated salary without protest. Further, his action in seeking enhancement of salary on a consolidated basis and withdrawing the same thereafter, clearly indicates that he did not go by the recital in the appointment order that he was entitled to Government scales. This conduct, according to the learned counsel, is sufficient to infer knowledge on the part of the petitioner that he had to acquire the additional qualification and that his appointment under the order dated 04.09.1997 was not a regular appointment. She also relied upon the fact that the petitioner along with other lecturers had been relieved from duties in March, 1999 and stressed that he would not have meekly submitted to the same, had he believed in the recitals in the appointment order dated 04.09.1997. Therefore, as he is not a regular appointee, the learned counsel would contend that he is not entitled to regular pay scales on par with Government lecturers. She submitted that the judgments relied upon by the learned counsel for the petitioner would not have application to the facts of the case. With regard to the necessity of acquiring the additional qualification, the learned counsel stated that the Standing Orders merely prescribed the order of preference amongst the qualifications and it is always open to the Selection Committee to decide as to which qualification was necessary in a particular subject. The order of preference would not, by itself, be binding on the Selection Committee. She therefore contended that the petitioner, not being a regularly appointed lecturer, cannot raise a claim for regular pay scales on par with Government lecturers. Sri M.Jagannatha Sarma, learned counsel, submitted in reply that it is the sole prerogative of the Selection Committee to undertake the selection of a candidate in accordance with the prescribed norms and guidelines. He stressed upon the fact that there was no other candidate available except his client and that the Selection Committee having found him to be adequately qualified, though his qualification was the third in the order of preference, found him fit for selection. The learned counsel also pointed out that the argument of Smt.Bhaskara Lakshmi, learned counsel, that the petitioner’s conduct indicates his knowledge of such a condition being attached to his appointment, does not find place in the counter or in the additional counter, and submitted that it was not open to the counsel to raise such a plea at the stage of arguments without corresponding resonance in the pleadings. He also denied the claim of the college that the petitioner was shown the minutes of the Selection Committee and submitted that no proof had been produced in evidence of such intimation to the petitioner. The learned counsel asserted that even accepting the contention, without admitting the same, that such a condition had been prescribed, no steps had been taken by the college to replace the petitioner upon the lapse of two years from the date of his appointment and in any event, the same would not disentitle the petitioner from laying a claim for regular pay scales for the period that he actually worked. Learned counsel also pointed out that nothing has been placed on record to show that the college was dissatisfied with the petitioner’s performance as a lecturer. It is stated that the petitioner was terminated from service with effect from 25.07.2000 on the ground of unauthorised absence, and therefore, the issue in the present writ petition is limited to his entitlement to be paid salary as per the State Government pay scales for the period 04.09.1997 upto 25.07.2000. The facts on record demonstrate that the petitioner was selected by a duly constituted Selection Committee, as prescribed under G.O.Ms.No.119, Education (CE1-2) Department, dated 22.03.1991, and pursuant thereto the appointment order dated 04.09.1997 was issued to him. The said order does not speak of any condition being attached to the appointment. Though copies the individual ranking lists of four of the six members of the Selection Committee have been produced, which contain a handwritten endorsement stating the condition of acquiring the additional qualification and the same handwritten endorsement is also found in the minutes of the Selection Committee, no material has been placed on record to indicate that the same was ever intimated to the petitioner. There is no explanation forthcoming about the apparent contradiction in the typewritten portion and the handwritten endorsement in the minutes of the Selection Committee and also the lack of authentication of the said endorsement. Further, there is no explanation as to why the appointment order communicated to the petitioner does not mention any such condition being attached to his appointment. Smt.Bhaskara Lakshmi, learned counsel, fairly conceded that the order of appointment does not speak of such a condition, but according to her, the conduct of the petitioner indicates his knowledge of such condition. Per contra, the learned counsel for the petitioner argued that such a plea had not been raised in the counter or in the additional counter filed by the college, and therefore, it is not open to the learned counsel to raise such a plea during the course of the arguments. I find force in this contention. Further, even if the said submission were to be considered on merits, mere acquiescence on the part of the petitioner with his being paid a consolidated salary or his request for enhancement of salary and subsequent withdrawal thereof, are only symptomatic of the sorry state of affairs of lecturers working in private colleges and the subservience that they are forced to endure at the whims and fancies of such college managements. The same cannot, by any stretch of imagination, lead to an inference that the petitioner was aware of any condition being attached to his appointment that he should acquire an additional M.Sc. qualification in Mathematics. The further argument of the learned counsel for the college that notwithstanding the fact that the qualification possessed by the petitioner was one of the prescribed qualifications for the post of lecturer in Mathematics as per the University’s Standing Orders, it is open to the Selection Committee to insist upon an additional qualification, cannot be countenanced. As per the Standing Orders of the University, the qualifications in order of preference prescribed for the post are M.A. in Mathematics, M.Sc. in Applied Mathematics and M.Sc. in Statistics. The petitioner admittedly possesses M.Sc. in Statistics as a whole time course. Therefore, the note appended to the qualifications’ clause which states to the effect that those who had taken M.Sc. Statistics Degree after undergoing the final year course are not eligible, does not have application to his case. It is indeed farfetched that the Selection Committee would have asked the petitioner to acquire the qualification of M.Sc. Mathematics, which is not even one of the qualifications prescribed as per the order of preference indicated above. Once there was no other candidate with a better claim than the petitioner, it cannot be accepted that the Selection Committee could have overlooked the fact that the petitioner possessed the qualification prescribed, albeit the third in the order of preference, and required him to acquire a further qualification. Thus, it cannot be accepted that the selection of the petitioner and his appointment under the order dated 04.09.1997 were subject to any condition with regard to his acquiring a further qualification and even if so, the same cannot be sustained for the aforestated reasons. Much stress was laid by the learned counsel for the college upon the conduct of the petitioner in accepting the consolidated salary and his being relieved from duty in March, 1999 and further, in his seeking enhancement of his salary and withdrawing the said request thereafter. As stated hereinbefore, such conduct, at the most, indicates the imbalance in the bargaining powers of the lecturers of such private colleges against the college managements. The issue is whether such conduct amounts to estoppel or waiver in so far as the claim of the petitioner for regular pay scales is concerned. Sri Jagannatha Sarma, learned counsel, relied upon the judgment of the Supreme Court in SECRETARY-CUM-CHIEF ENGINEER, CHANDIGARH V/s. HARI OM SHARMA AND OTHERS[1] and the judgment of a learned single Judge of this Court i n SMT.M.D.SOUJANYA AND ANOTHER V/s. S.V.V.P.V.M.C. MAHILA VIDYA PEETH, VISAKHAPATNAM AND OTHERS[2], which was affirmed in appeal by a Division Bench of this Court in the unreported judgment dated 27.09.2006 in W.A.No.930 of 2006, in support of his contention that such conduct does not disentitle the petitioner to maintain a claim for the relief prayed for in this writ petition. I n HARI OM SHARMA’s case (1 supra), the Supreme Court said “… An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act.” Similar is the view taken by the learned Judge of this Court in SMT.M.D.SOUJANYA’s case (2 supra), wherein the learned Judge, having referred to precedential law on this aspect, held that the statutory provisions of Rule 7(4) of the Rules, which is in public interest, cannot be waived by agreement and would require strict compliance. This view was reaffirmed by the Division Bench in appeal holding that as per the Supreme Court judgment in STATE BANK OF PATIALA V/s. S.K.SHARMA[3], the plea of waiver of the requirement of complying with a statutory rule cannot be raised in cases where the rule is conceived in public interest. In the light of the aforestated legal position, the College in the present case cannot rely either upon the written communication of the petitioner withdrawing his request for enhancement of salary or upon his conduct acquiescing with the treatment meted out to him to state that the rule of estoppel and waiver would bar him from raising a claim for payment of regular pay scales in accordance with Rule 7(4) of the Rules. Rule 7(4) of the Rules reads as hereunder: “7(4) Payment of salaries to staff:- The educational agency of any private institution shall pay salaries to its staff as per the Government scales of pay and by following such procedure as may be prescribed by Government from time to time, in this regard.” Considering this provision in SMT.M.D.SOUJANYA’s case (2 supra) this Court opined that having appointed the lecturers and having extracted work from them, it is not open to the college to contend that though it had violated statutory rules in making certain appointments, it was entitled to take advantage of such illegality and deny Government scales of pay to them. The learned Judge further observed that statutory provisions require compliance and it cannot be contended that illegal action in making appointments would justify violation of Rule 7(4) of the Rules and in consequent denial of payment of Government scales of pay to such lecturers. The learned Judge also referred to the Division Bench judgment of this Court in Y.SIDDA REDDY V/s. GOVERNMENT OF ANDHRA PRADESH[4] and held that the decision of the State, whether or not to extend financial assistance to educational institutions, would not relieve the management of such private educational institutions of its obligation to pay proper salary and other benefits which are agreed to by the Management or imposed upon the management by law. In the present case, be it under the binding promise under the appointment order dated 04.09.1997 or under Rule 7(4) of the Rules, the petitioner has clearly made out his entitlement, be it by agreement or under force of law, to be paid salary as prescribed by the Government for a Government Degree College Lecturer. The petitioner was, for all accounts, regularly appointed as a lecturer in Mathematics in the college, in accordance with the procedure prescribed. The contention of Smt.Bhaskara Lakshmi, learned counsel, that the petitioner is not entitled to the protection of the judgments aforestated or Rule 7(4) of the Rules as he was not a regular appointee, must therefore fall to the ground. The learned counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in K.KRISHNAMACHARYULU AND OTHERS V/s. SRI VENKATESWARA HINDU COLLEGE OF ENGINEERING AND ANOTHER[5]. The observations of the Supreme Court therein are apposite: “…We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under