IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) , THE DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE A. GOPAL REDDY AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL Nos.329 and 335 of 2003 WRIT APPEAL No.329 of 2003: BETWEEN N. Gopi Kumar. …APPELLANT AND The Director, Sri Venkateswara Institute of Medical Sciences, Tirupati, Chittoor District. …RESPONDENT Counsel for the Appellant: MR. V. JAGAPATHI Counsel for the Respondent: SMT. P. SARADA WRIT APPEAL.No.335 of 2003: BETWEEN K. M. Thulasiram. …APPELLANT AND The Director, Sri Venkateswara Institute of Medical Sciences, Tirupati, Chittoor District. …RESPONDENT Counsel for the Appellant: MR. V. JAGAPATHI Counsel for the Respondent: SMT. P. SARADA The Court made the following: COMMON JUDGMENT: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) W.A.Nos.329 and 335 of 2003 are directed against the common order of the learned single Judge dismissing the writ petitions being W.P.Nos.15849 and 15993 of 1999 respectively by order dated 10.01.2003. Hence, the petitioners in both the writ petitions are appellants in these respective appeals. 2. For the sake of convenience the parties are referred to as they are arrayed in the writ petitions and the facts as well as the point involved in both the writ petitions being common, the facts insofar as W.P.No.15849 of 1999 are mentioned hereunder. 3. The respondent – Sri Venkateswara Institute of Medical Sciences (hereinafter referred to as ‘SVIMS’) notified to the Employment Exchange, Chittoor, requesting to sponsor eligible candidates for the post of A.C. Plant- cum-Generator Operator. The petitioners in both the writ petitions were sponsored by the Employment Officer along with other eligible candidates and both the petitioners appeared for selection and interview on 17.11.1992. Both the petitioners were selected and were issued appointment orders by SVIMS. So far as the petitioner in WP.No.15849 of 2993 is concerned, the appointment order bearing proceedings Roc.No.C1/30/SVIMS/93 dated 11.02.1993 was issued to him. The relevant portion thereof, which has relevance for deciding the present issue, is extracted as under: “Sri N. Gopi Kumar S/o. Sri N. Chandrasekhar Reddy who has been selected by the Selection Committee of this Institution held on 17.11.1992 at Tirupati is temporarily appointed as A.C. Plant-cum- Generator Operator on pay of Rs.780/- plus usual allowances per month as per rules in the time scale of Rs.780-20-1000-25-1275. 2… 3… 4… 5. If he/she accept the terms of appointment, he/she shall join duty on or after …… and before 28.02.1993 failing which the appointment stands cancelled without any further notice.” So far as the petitioner in other W.P.No.15993 of 2003 is concerned, he was also issued appointment order in proceedings Roc.No.C1/30/SVIMS/93 dated 06.04.1993 and the relevant portion thereof is as follows: “Sri K.M. Thulasi Ram S/o. Sri K.M. Yaga Murthy who has been selected by the Selection Committee of this Institution held on 17.11.1992 at Tirupati is temporarily appointed as Asst. A.C. Plant- cum-Generator Operator on pay of Rs.780/- plus usual allowances per month as per rules in the time scale of Rs.780-20-1000-25-1275. 2… 3… 4… 5. If he/she accept the terms of appointment, he/she shall join duty on or after forthwith failing which the appointment stands cancelled without any further notice.” 4. The grievance of the petitioners in both the writ petitions is that while the post was notified for recruitment as A.C. Plant-cum-Generator Operator in the pay scale of Rs.1010-Rs.1800, the appointment order issued to the petitioner in W.P.No.15489 of 1999 (first extracted above) shows that he is temporarily appointed as A.C. Plant-cum- Generator Operator in the scale of Rs.780-1275 whereas the appointment order issued to the petitioner in W.P.No.15993 of 1999 (second extracted above) shows that he is appointed as Asst. A.C. Plant-cum-Generator Operator in the pay scale of Rs.780-1275 and consequently, the petitioners contend that the pay scale of Rs.1010-1800 as notified for recruitment is wrongfully being denied to them. The petitioners contend that in pursuance of the order of appointment they have joined the said post on 17.02.1993 and 08.04.1993 respectively. It is also claimed that by proceedings of SVIMS dated 24.06.1996 their respective services have been regularized from the date of their joining. However, the pay scale of Rs.1010-1800 has not been extended to them in spite of their representations. 5. Meanwhile, the Government of Andhra Pradesh revised the pay scales of employees with effect from 01.01.1993 and the Governing Council of SVIMS resolved on 03.04.1993 to implement the revised scales of pay and the pay scale of Rs.1010-1800 was revised corresponding to Rs.2195- 4560, which has not been extended to the petitioners, though they made several representations. It is further alleged that the petitioners had made out a grievance in that respect before the General Manager (Operations), in pursuance of circular of SVIMS dated 26.08.1998 and in spite of the fact that the said General Manager has recommended extending the corresponding revised scale of pay to the petitioners, SVIMS has not extended the said scale and by proceedings of SVIMS dated 15.04.2002 issued in pursuance of interim directions of this Court pending W.P.No.15993 of 1999 the said representation of the petitioner was rejected. Consequently, the said proceedings of SVIMS dated 15.04.2002 is also challenged in W.P.No.15993 of 1999. 6. Petitioners also alleged that several other personnel appointed to various posts as described in Para 5 of the affidavit were granted the benefit of re-designation and re-fixation of pay but the same was not extended to the petitioners, though the petitioners hold the requisite qualifications, have been sponsored by the Employment Exchange and as per the notification at the time of recruitment they are entitled to the aforesaid scale of Rs.1010-1800. 7. A detailed counter affidavit has been filed by SVIMS stating that the petitioner in WP.No.15849 of 1999 was selected and temporarily appointed as A.C. Plant-cum-Generator Operator in the pre-revised sale of Rs.780- 1275 and his pay was later re-fixed in the scale of Rs.1665-3200 with effect from 18.02.1993 forenoon giving monetary benefit from 01.04.1993 as per the revised pay scales of 1993. It was contended that there is no post in the Government called A.C. Plant-cum-Generator Operator and as such, no scale is fixed and only because SVIMS was in need of such post, the pay scale of such post was fixed at Rs.780/- (pre-revised) and on revision of pay scales the same corresponds to Rs.1475/-. However, the petitioners have been granted higher scale of Rs.1665 instead of Rs.1475 while implementing the revised pay scales. 8. In the counter they have denied any parity available to the petitioners with the various appointments as discussed in Para 5 of the affidavit and have explained each of the said appointment and their re-fixation of scale and have stated that nobody has been given any higher scale and they were all selected and given pay scales as per rules. With respect to the recommendations of the General Manager (Operations) on which the petitioners rely, it was stated that the General Manager has no right to fix the scale of pay and only the Director, SVIMS is the competent authority with the approval of the Executive Board, for all the employees of SVIMS and the post of A.C. Plant-cum-Generator Operator does not carry the scale of Rs.2195-4560 and as such, the petitioners are not entitled thereto. 9. Learned single Judge considered the writ petitions in the light of the respective pleadings and the material. The original record was also produced before the learned single Judge and after considering the entire material, the learned single Judge was of the view that the petitioners having been appointed in the scale of Rs.780-1275 they are not entitled to any higher scale of pay. Learned single Judge was also of the view that fixation of pay scales of employees and placing of employees in a particular scale of pay is within the realm of the Executive, which cannot be interfered with under Article 226 of the Constitution of India. It was also noted that the recommendations of General Manager to extend the said higher pay scale to the petitioners was not binding on the Director and the Executive Board and in fact, the said recommendations could not be placed before the committee formed by the Executive board, as SVIMS itself was handed over to Tirumala Tirupati Devasthanams (TTD). The writ petitions, accordingly, were dismissed. As stated above, these appeals are filed by both the petitioners seeking the said scale of pay and the corresponding revised scale of pay. 10. We have heard Mr. V. Jagapathi, learned counsel appearing for both the petitioners and Smt. P. Sarada, learned counsel appearing for SVIMS. 11. Mr. V. Jagapathi, learned counsel, has strenuously contended that though there are no posts in the Government as A.C. Plant-cum-Generator Operator, SVIMS itself needed such posts and notified to the employment exchange accordingly by mentioning the pay scale of Rs.1010-1800. However, when the petitioners were selected and appointed they were given a lesser pay scale of Rs.780-1275, which is arbitrary. It is also claimed that the Director has made two categories of A.C. Plant-cum-Generator Operator as Grade-I and Grade-II and has wrongfully designated and treated the petitioners as Asst. A.C. Plant-cum-Generator Operator. He submits that the appointment order of the petitioner in the first writ petition shows that he is appointed as A.C. Plant-cum-Generator Operator whereas the appointment order of the petitioner in the second writ petition shows that he is appointed as Asst. A.C. Plant-cum-Generator Operator, though the pay scales for both is same. He also submits that the petitioners have the requisite ITI qualification and all other personnel appointed to different posts based on ITI qualification have been designated correctly and have been given appropriate pay scales, as shown by various instances listed under Para 5 of the affidavit. He, therefore, submits that there is hostile discrimination and there is no reason why the petitioners are denied the scale of Rs.2195-4560. 12. Learned standing counsel for SVIMS submits that even before the learned single Judge the record was produced and on a perusal of the file, the learned single Judge has recorded that, so far as the petitioner in the first writ petition is concerned, the file itself shows that the Director, SVIMS approved his appointment as Asst. A.C. Plant-cum-Generator Operator but the appointment order given to him erroneously shows that he is appointed as A.C. Plant-cum-Generator Operator. She also submitted that the petitioners cannot take advantage of the said mistake in the appointment order, though in case of the petitioner in the second writ petition, the order correctly mentions that he is appointed as Asst. A.C. Plant-cum-Generator Operator. She, further, contended that both the petitioners have accepted the appointment and working as such in the scale as shown in the order of appointment and it is, therefore, not open for them to contend that the said pay scale in which they are appointed is to be ignored and their pay has to be re-fixed. 13. We have considered the aforesaid contentions and after examining the entire record including the findings of the learned single Judge, We are of the view that the appeals have no merit and are liable to be dismissed. The reasons, therefor, are as follows. 14. As noticed by the learned single Judge, the original file shows that the Director approved the appointment of the petitioners only as Asst. A.C. Plant-cum-Generator Operator and not as A.C. Plant-cum-Generator Operator as contended by the petitioners. There is, therefore, no scope for assumption that notwithstanding the said appointment expressly having been approved as Asst. A.C. Plant-cum-Generator Operator by the competent authority, to be understood or deemed as A.C. Plant-cum-Generator Operator. Even assuming that the SVIMS had earlier notified the scale of pay as Rs.1010-1800 for recruitment to the post of A.C. Plant-cum- Generator Operator, the Director had approved the appointment of the petitioners only as Asst. A.C. Plant-cum-Generator Operator in the pay scale of Rs.780-1275. When the appointment orders issued in pursuance thereof, which are extracted in the beginning of the judgment, specifically mentions the scale in which they are appointed, We are of the view that irrespective of the nomenclature of the post whether designated as A.C. Plant-cum-Generator Operator or Asst. A.C. Plant-cum-Generator Operator, the scale of pay in which the said appointment was made cannot be presumed to be something else than what the order of appointment states. 15. Further and most importantly, the order of appointment specifically stated that on communication of the said proposed appointment it was for the petitioners to accept the same on or before the date mentioned therein failing which the appointment stands cancelled. The said order of appointment was, therefore, in the nature of an offer and it was for the petitioners to accept the same. Since both the petitioners have accepted the said offer of appointment and have joined the said post, it is not open for them to contend that they are entitled, as a matter of right, to any higher pay scale than what is mentioned in the order of appointment. The petitioners, therefore, had express notice of the pay scale in which they are being appointed and if they were not willing for the said pay scale and wanted higher pay scale, they could have refused to accept the said appointment. Thus, having accepted the appointment and the terms and conditions thereof, which include the pay scale offered, now it is not open for the petitioners to contend later on that they are entitled to higher pay scale. We also find that though the order of appointment is dated 11.02.1993 and 06.04.1993 respectively in both the writ petitions, the representations seeking higher scale of pay for the first time came to be made by the petitioners only sometime in 1996 and it appears that only when the revised scales were adopted by SVIMS, the petitioners started making representations seeking higher pay scales. We are, therefore, of the view that the petitioners are not entitled to claim a higher pay scale than what was offered to them in the order of appointment for reasons more than one. 15. Secondly to the extent of the contention of the petitioners that other candidates as listed out in Para 5 having ITI qualification have been re- designated and have been granted the benefit of re-fixation of pay is also not tenable inasmuch as none of them are appointed to the post held by the petitioners. Further, the counter affidavit filed by SVIMS explains in Para 4 that the pay scales and posts held by other personnel named by the petitioners were either existing in the Government with the pay scale, which is adopted by SVIMS, or on par with the sister institute of SVIMS. With respect to some of the employees it was stated that they have joined SVIMS after adoption of revised pay scales and in different trades and as such, no parity can be claimed by the petitioners with any of them. The said contention also is, therefore, not sustainable and liable to be rejected. The recommendations of the General Manager on which the petitioners rely are admittedly in the nature of recommendations and not binding on the Director or the Executive Board. 16. It is also brought to our notice that subsequently both the petitioners were later promoted as A.C. Plant-cum-Generator Operator Grade-I from 01.08.2009 and are drawing the pay scale attached to the said post. The grievance of the petitioners in the writ petitions, therefore, is clearly misconceived and the order of the learned single Judge impugned herein does not suffer from any error warranting interference therewith. The writ appeals, accordingly, are dismissed. There shall be no order as to costs. _______________ A. GOPAL REDDY, J _____________________ VILAS V. AFZULPURKAR, J March , 2010 DSK