IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 2343 of 1999 Between: Dr.S.V.Ravindranath, S/o S.V.Surendranath, Senior Medical Officer, APSRTC, Hospital Tarnaka, Hyderabad. ..... PETITIONER AND 1 The Board of Directors A.P.S.R.T.C., rep. by its Chairman, Nuseerabad, Hyderabad. 2 The Vice Chairman & Mg.Director, A.P.S.R.T.C., Museerabad, Hyderabad. 3 The Secretary to Govt. of A.P. Medical & Health Dept, Secretariat, Hyderabad. .....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 preferably in the nature of writ of certiorari and after calling for the records pertaining to the impugned order No.Ee/232(9)/89-PD, dt.21.7.98, issued by the 2nd respondent on behalf of the 1st respondent and quash the same as such and consequential direct the respondents to pay salary and allowance for period 24.11.80 to 4.9.81 and further direct the respondents to grant 3 advance increments for having acquired higher qualification of M.Sc(General Surgery) with interest Counsel for the Petitioner:DR.K.LAKSHMI NARASIMHA Counsel for the Respondent No.: MR.K.MADHAVA REDDY The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 2343 OF 1999 ORDER: The grievance of the petitioner in this writ petition is twofold. Firstly that, for the period from 24.11.1980 to 04.11.1981 when the respondent corporation had sent him on deputation, he should be paid salary. Secondly that, for the period from August, 1982 to September, 1985 when he was permitted to pursue M.S. (general surgery) course with leave on loss of pay, he should be granted three increments as was granted to several others before him on their completing their Post Graduate course in medicine/surgery. This case has a chequered history. The petitioner, on his appointment with the respondent corporation on 22.05.1980, made a request on 15.07.1980 that the respondent corporation permit him to undergo M.Ch. course in the National Institute of Mental Health & Neuro Sciences, Bangalore (for short ‘NIMHANS’). Based on his request, the respondents, vide proceedings dated 19.08.1980, informed the Director NIMHANS that the petitioner, a Civil Assistant Surgeon with the respondent corporation, was being deputed to take up the Postgraduate course of M.Ch. in Neuro surgery in NIMHANS. In reply thereto NIMHANS, vide letter dated 14.10.1980, informed the second respondent that the petitioner had been permitted to join forthwith in the department of Neuro surgery of NIMHANS for training and that his admission to M.Ch. course was subject to his passing the test at the end of the year. In reply thereto, the respondent corporation, vide letter dated 20.11.1980, relieved the petitioner from duty on the afternoon of 21.11.1980 to enable him to join NIMHANS to undergo the Postgraduate course in Neuro surgery. Since this letter has a bearing on the question raised in the writ petition, it is useful to extract its contents in their entirety. ANDHRA PRADESH STATE ROAD TRANSPROT CORPORATION Office of the General Manager Mushirabad, Hyderabad-20. No. Ee/218(12)/80-PD. Dated: 20.11.1980. OFFIE ORDER: Sub: Education – Dr. S.V. Ravindranath – CAS., APSRTC Hospital, Tarnaka Permission to Dr. S.V. Ravindranath to join in the National Institute of Mental Health & Neuro Sciences, Bangalore – Orders – Communicated. Ref: 1. Lr. No. MCH/80, dated 14.10.1980 from the Director, National Institute of Mental Health & Neuro Sciences, Bangalore. 2. Application dated 30.10.1980 from Dr. S.V. Ravindranath, CAS, APSRTC, Tarnaka. …….. Dr. S.V. Ravindra Nath, Civil Asst. Surgeon, APSRTC Hospital, Tarnaka has requested to forward his application for admission to the post graduate course for M.Ch. in Neuro Srugery in the National Institute of Mental Health and Neuro Sciences, Bangalore. Accordingly his application was forwarded to the Director, National Institute of Mental Health and Neuro Sciences, Bangalore for consideration. The Director, National Institute of Mental Health and Neuro Sciences, Bangalore for consideration. The Director, National Institute of Mental Health & Neuro Science, Bangalore vide his letter at reference 1st cited, has informed that Dr. S.V. Ravindranath has been permitted to join forthwith the department of Neuro Surgery, National Institute of Mental Health and Neuro Sciences for training in Neuro Surgery. His admission to M.Ch. course is subject to his passing the tset at the end of the year. Subject to ratification by the corporation, the Chairman has accorded sanction permitting Dr. S.V. Ravindra Nath, CAS/APSRTC Hospital, Tarnaka to undergo training before admission to the M.Ch. course at National Institute of Mental Health and Neuro Sciences, Bangalore. The terms and conditions for the grant of above permission will be notified later, after approval by the corporation. Dr. S.V. Ravindra Nath has to execute a bond based on the terms and conditions to be decided by the corporation. If the terms and conditions are not acceptable, the permission granted will be withdrawn. Dr. S.V. Ravindra Nath relieved from the duties on the afternoon of 21st November, 1980. Sd/- Addl. General Manager. Thereafter the Government, vide letter dated 02.12.1980, informed the Director NIMHANS, while forwarding the application of the petitioner, that he be considered as a candidate sponsored by the Government of Andhra Pradesh to study M.Ch Neuro surgery at NIMHANS and that, during the period of his studies, he would be paid pay and allowances by the A.P. State Road Transport Corporation, Hyderabad in which institution he was presently working. The petitioner joined NIMHANS and, after a period of ten months, came back without completing the course on 04.09.1981. The Board of Directors of the A.P.S.R.T.C, in their meeting held on 09.08.1982, noted that the petitioner was permitted to go on study leave from 21.11.1980 for training at NIMHANS, Bangalore subject to ratification by the Corporation on terms and conditions of study leave that were to be decided, that on completion of training the petitioner had reported for duty with the corporation on 05.09.1981 and that the Board, in its resolution No. 176/1980, had desired that a proposal be put up in detail governing the rules and procedure regarding study leave and that the Vice-Chairman & General Manger had explained that the petitioner had applied for grant of study leave for prosecuting Post-Graduate Course in General Surgery at a Medical College in Madras. With regards grant of study leave to the petitioner to undergo training at NIMHANS, the Board ratified the action of the Chairman and ordered that the period of training from 22.11.1980 to 04.09.1981 be treated as leave without pay in relaxation of the APSRTC Employees (Leave) Regulations. On a query from the Court as to which was the Board proceedings, whereby the action of the Chairman was ratified, Sri K. Madhava Reddy, learned Standing Counsel for the Corporation, would submit that it was the Board proceedings dated 20.11.1980 whereby the action of the Chairman was ratified by the Board. It is useful in this context to also refer to the APSRTC Employees Service Regulations, 1964 which regulations have statutory force, having received the previous sanction of the State Government under Section 45(1) of the Road Transport Corporation Act, 1950. These regulations apply to all employees of the Corporation. Regulation 2(iv)(d) defines duty. Thereunder a person is said to be “on duty” as a member of a service when he is deputed by a competent authority to attend an authorised course of instruction or training. The explanation thereunder reads thus: If an employee is deputed by a competent authority to attend a course of instruction or training in the interest of the corporation, and he is required to execute for a minimum period, the period spent on the journey to and from the place of training or instruction as the case may be, be treated as duty. On the other hand, if an employee on his own attends a course of training or instruction in order to acquire a special qualifications then the period of absence shall not be treated as duty; if the qualifications which he proposes to acquire are likely to be of use in connection with his work in the Corporation it may be treated as leave due to him or as study leave, if such leave is admissible. Thus if an employee is deputed by a competent authority to attend the course of instruction or training in the interest of the corporation and is required to execute an undertaking, to serve the corporation on return for a minimum period, the period spent on the journey to and fro from the place of training or instruction shall also be treated as duty. Thus right from the period when the employee commences his onward journey to join the institute whereunder he is to be imparted training till he undertakes the return journey back and reports for duty with the corporation including the period he undergoes training, the entire period is to be reckoned as “duty” under the Employees Services Regulation. Dr. K. Lakshmi Narasimha, learned Counsel for the petitioner would place emphasis on this regulation to contend that, since the petitioner was deputed by the Corporation in its proceedings dated 20.11.1980 to undergo training, in the form of a Post-Graduate course in Neuro surgery, at NIMHANS, Bangalore, the petitioner is entitled to be paid salary for the period of deputation as, under the Service Regulation, the entire period of deputation is required to be treated as on duty. Sri K. Madhava Reddy, learned Standing Counsel for the corporation, on the other hand would contend that since the petitioner, vide letter dated 15.07.1980 had requested that his application for admission in the Post-Graduate course in M.Ch Neuro surgery at the National Institute of Mental Health & Neuro Sciences, Bangalore be forwarded and, as the said speciality was not available at Tarnaka hospital, the corporation had permitted him to undergo the Postgraduate course. Learned Standing Counsel would contend that, since the petitioner was sent to undergo the course at his request, and not at the behest of the corporation, the period for which he underwent training at NIMHANS, Bangalore cannot be treated as deputation which would entitle an employee for salary during the period of deputation and that the corporation had been indulgent in treating the period of absence as extraordinary leave. Learned Standing Counsel would further contend that, in any event, since the Board of Directors of the Corporation have resolved to treat the period as leave without pay, the petitioner cannot claim salary for the said period. A perusal of the order dated 20.11.1980 extracted hereinabove would reveal that the petitioner was deputed to undergo Post- Graduate course in Neuro surgery by the APSRTC. The Chairman had accorded sanction, permitting the petitioner to undergo training, before admission to the M.Ch course at NIMHANS, Bangalore, subject to ratification by the Corporation. The terms and conditions subject to which sanction was accorded was also to be notified later after approval by the Corporation. The Board resolution dated 09.08.1982 would show that the Board has not taken a view different from that of the Chairman but has, in fact, ratified his action. Once the action of the Chairman is ratified, and the petitioner is held to have been sent on deputation, then under the Service Regulation the period of deputation is required to be treated as “on duty” and a member of the service is entitled to be paid salary for the duty period. The contention of Sri K. Madhava Reddy, learned Standing Counsel for the Corporation that the permission accorded to the petitioner to undergo training was at his request is of little consequence. In either event, of a request by the petitioner that he be sent for training or the Corporation, on its own accord, choosing to do so, what is material is the action taken by the Chairman in this regard. Even if an employee so requests, that he be sent for training, the Corporation is entitled to take an independent decision whether or not such an employee should be sent on deputation for undergoing training. The Service Regulations of the Corporation enable the Chairman to depute employees of the Corporation to undergo training subject, of course, to approval being accorded by the Board, at reputed institutions in the country including at NIMHANS, Bangalore. The fact that it was always the intention of the respondents that the period of deputation, should be treated as on duty, is also evident from the letter, addressed by the Government to the Director of NIMHANS, dated 02.12.1980 that, during the period of his studies, the petitioner would be paid pay and allowances by the APSRTC. It would have been a different matter if the Board had refused to ratify the action of the Chairman for just and valid reasons. In the case on hand the Board has, in fact, ratified the action of the Chairman to send the petitioner on deputation to NIMHANS, Bangalore. The attention of the Board has, obviously not been drawn to the relevant statutory regulations which enables the period of deputation to be treated as “on duty”. While Dr. K. Lakshmi Narasimha, learned Counsel for the petitioner, would submit that, since the petitioner has been forced to undergo the ordeal of endless litigation and that this is the second time that he has approached this Court, I do not consider the circumstances of the case as warranting issuance of a mandamus to the corporation to pay him salary for this period. I consider it appropriate that the Corporation be directed to reconsider the matter, in the light of the observations made hereinabove, and pass an order in accordance with law with regards the petitioner’s claim to be paid salary for this period. It is made clear that, even in case the Board decides to pay salary to the petitioner for the aforesaid period, he need not be paid interest for such belated payment as no employee can claim as of right that he be sent on deputation. With regards the petitioner’s claim for additional increments, no rule, regulation or circular instructions of the Board which requires a person to be paid three increments, on his undergoing a Post-Graduate course, has been brought to the notice of this Court. All that the petitioner contends is that persons senior to him have been extended the benefit and that he should also be given the same benefit unless the Corporation has taken a conscious decision to dispense with conferment of this benefit. A perusal of the counter- affidavit filed by the Corporation would show that, while the Corporation has admitted that persons, who had undergone Post- Graduation prior to the period when the petitioner underwent the P.G. course, were given the said benefit, it has thereafter refrained from extending the benefits to any of its employees. In the counter- affidavit the names of three persons who acquired higher qualifications but were not sanctioned advanced increments is given viz.., Dr. V. Ram Mohan Rao, Dr. A. Balaram and Dr. A. Vanaja Rani. Whether grant of increments to persons named by the petitioner, in the affidavit filed in support of the writ petition, is in accordance with law and whether there was any conscious policy decision by the Corporation earlier to extend the said benefit which would necessitate a conscious decision being taken not to continue the said benefit is not clear from the material placed on record. Since it is evident from the counter-affidavit that the respondents have chosen not to extend the said benefit, and that denial of the said benefit had not been limited only to the petitioner but has been applied to several other employees of the Corporation who have also undergone Post-Graduate course while in service, I do not see any justification in directing the respondent to extend the said benefit to the petitioner herein. Suffice to note that the corporation has chosen to extend notional increments to the petitioner for this period of three years. The petitioner’s claim of additional increments for the period from August, 1982 to September, 1985 must fail. The Board of Directors of the Corporation shall examine the petitioner’s claim for payment of salary for the period of deputation to NIMHANS, Bangalore from 24.11.1980 to 04.11.1981. Since the claim relates to a period more than a quarter of a century ago, it is but appropriate that the Board considers this claim at the earliest, in any event not later than four months from the date of receipt of a copy of this order. The Writ petition is disposed of accordingly. No costs. _______________________________ Date: 26.02.2008 RAMESH RANGANATHAN, J MRKR To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{LOBIS}