THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36026 of 1998 Date: 18.02.2010 Between: Dr. K. Tata Rao. … Petitioner and The Correspondent & Vice-Chairman, Mrs. Ankitam Venkatga Narasinga Rao College, Managing Committee, Visakhapatnam and five others. … Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36026 of 1998 ORDER: Heard Sri T.V.V.S. Murthy, learned Counsel for the petitioner and Sri A. Venkataramana, learned Counsel appearing for the 1st and 3rd respondent college. Neither is the Government Pleader for Higher Education present nor has a counter- affidavit been filed on behalf of the 5th and 6th respondents. The relief sought for in this writ petition is for payment of arrears of pay and allowances, consequent on the pay scales being revised vide G.O.Ms. No.288 dated 17.11.1986 and G.O.(P). No.162 dated 20.05.1993 and for corresponding contribution to the EPF and the family pension scheme and gratuity. The petitioner also claims interest at 24% p.a. for the delay in payment of the amounts legally due to him. The petitioner herein applied for the post of Assistant Librarian and was appointed on 26.03.1981 in the scale of pay Rs.450-15-660-20-700, consequent upon the selections held on 15.03.1981. The petitioner was selected by a duly constituted selection committee consisting of five members including the Correspondent & Vice- Chairman, the nominee of the Government and others. In the order of appointment dated 26.03.1981 the petitioner was informed that his pay scale was subject to revision from time to time as per Government orders. It is the petitioner’s case that he was granted increments from 1981 to 1986 but was denied the said benefit from 1987 till 1991. The pay scales of employees in the cadre of Assistant Librarian or its equivalent was revised in G.O.Ms. No.288 dated 17.11.1986 to Rs.860-25-1110-30-1470 with effect from 01.07.1986. The petitioner was, however, not extended the said benefit. The pay scales were again revised in G.O.(P). No.162 dated 20.05.1993 to Rs.1595-3200 which benefit was also not extended to the petitioner. Petitioner’s repeated reminders resulted in the intervention of the District Collector and in his basic pay being fixed at Rs.1250/-. During his stint in the respondent college the petitioner completed his Master course in Library science and thereafter his Phd course also. He resigned from service on 27.07.1994 and joined as a Deputy Librarian at Sri Satya Sai Institute of Higher Learning, Prashanti Nilayam. In the counter-affidavit filed on behalf of respondent Nos.1 to 3, it is stated that, though the petitioner was appointed as an Assistant Librarian, the said post was not admitted to grant-in-aid; despite proposals in this regard having been put up by the management the matter was pending consideration with respondent Nos.5 and 6; the impugned appointment order was issued on the premise that the petitioner would be entitled to pay scales as and when the post was admitted to grant-in-aid; since the college was not receiving grants, and the proposal was pending consideration before the competent authority, the management had paid the petitioner’s salary from its funds with the intention of implementing the scale after admission of the post to grant- in-aid; on the petitioner’s representation, the Managing Committee had released increments; the revised pay scales prescribed by the State Government for teaching and non-teaching staff were not straight away applicable to employees of private aided institutions till such time respondent Nos.5 and 6 issued orders adopting the same; the revised pay scales were made applicable only to aided posts; the petitioner was, however, paid the scale of Rs.860-1470 with effect from 01.07.1986 from the management funds; the petitioner was not entitled for the benefit of G.O.(P). No.162 dated 20.05.1993; though proposals were sent to the 5th respondent, for admission of the petitioner’s post to grant-in-aid and for regularization of his services on 14.08.1987 and 24.08.1991, no orders were issued; having regard to the services rendered by the petitioner, the principal had permitted deduction of group insurance; the management had contributed to the P.F. Fund from 01.04.1981 to 30.06.1984, since PF was liable to be deducted from all employees; the petitioner’s post was not admitted to aid, his appointment was not ratified and he was not entitled to regular pay scales; the management was making payment from its funds; if the petitioner’s post was admitted to aid, he would also receive all the benefits; only on the petitioner’s appointment being ratified was he entitled to all the benefits; since the petitioner had resigned unconditionally he had waived his right to claim arrears of salary; and the writ petition was hit by laches. Sri T.V.V.S. Murthy, learned Counsel for the petitioner would submit that under Rule 7(4), of the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987, (notified in G.O.Ms. No.29 dated 05.02.1987), employees working in non-teaching posts in private educational institutions were also entitled for payment of salary on par with the Government scales of pay. Learned Counsel would submit that, having regard to the doctrine of equal pay for equal work and as the petitioner had discharged duties similar to that of a lecturer whose posted was admitted to grant-in-aid, he was entitled to the very same pay scales as were being extended to employees whose post was admitted to grant-in-aid. Learned Counsel would rely on K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering[1], K.C. Venkateswarlu v. Government of A.P.[2] and State of Himachal Pradesh v. H P State Recognised and Aided Schools Managing Committees[3]. Sri A. Venkataramana, learned Counsel for the 1st respondent, would submit that Rule 7(4) of the 1987 Rules applied only to regular employees; as the petitioner’s appointment had not been ratified he could not be considered a regular employee entitled to the benefit of pay scales equal to that of government employees; the petitioner’s unconditional resignation amounted to his having waived his right to claim arrears from the 1st respondent; and since the petitioner had resigned from the services of the 1st respondent on 27.07.1994 and the present writ petition was filed in December, 1998, more than four and half years after he resigned, the writ petition was liable to be dismissed on the ground of inordinate delay and laches. The A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 (hereinafter called the 1987 Rules) apply to all educational institutions both Government and private i.e., Junior Colleges, Degree Colleges and Oriental Colleges etc. It is not in dispute that the 1st respondent college falls within the ambit of the 1987 Rules. Rule 7(1) provides that the staff pattern for various classes/categories of educational institutions is required to be prescribed by the Director of Higher Education. Under Rule 7(2)(c) appointment of non-teaching staff for private educational institutions is required to be made by a Selection Committee from among the candidates sponsored by the Employment Exchange, or drawn through news paper advertisements in case the Employment Exchange cannot sponsor suitable candidates. The said sub-rule also prescribes the constitution of the selection committee. Rule 7(3) provides that the competent authority for approval of appointment of non-teaching staff in all institutions shall be the Director. The said rule requires the educational agency to get the list of selected candidates approved by the competent authority within one month from the date of making the appointment by applying in Form IV. Rule 7(4) relates to payment of salaries to staff and thereunder the educational agency of any private institution is required to pay salaries to its staff as per Government scales of pay and by following such procedure as may be prescribed by the Government from time to time, in this regard. The submission of Sri A. Venkataramana, in substance, is that the petitioner’s appointment was not approved by the Director as stipulated in Rule 7(3) and as such he is not entitled for payment of the salaries prescribed under Rule 7(4) of the 1987 Rules. Except for a bald averment that “only on the petitioner’s appointment being ratified, the petitioner is entitled to all the benefits”, the counter-affidavit of the 1st respondent is completely silent as to when the 1st respondent submitted the list of candidates; as to whether and when the 1st respondent submitted the list of selected candidates for approval of the competent authority; whether there was any correspondence in this regard; and the circumstances under which the petitioner’s appointment was not approved. The counter-affidavit, when read its entirety, merely speaks of the petitioner’s post not being admitted to grant-in-aid as the reason for his being denied regular pay scales on par with that extended to government employees. As noted hereinabove, neither is the Government Pleader for Higher Education present nor did the official respondents file any counter-affidavit. I see no reason to deny the petitioner the benefit of Rule 7(4) on the basis of a bald and vague averment in the 1st respondent’s counter-affidavit. Even otherwise, while failure by the competent authority to accord approval under Rule 7(3) may necessitate the services of the employee being discontinued, all that Rule 7(4) provides for is that the educational agency of a private institution shall pay salaries to its staff as per Government scales of pay. It is not in dispute that the petitioner was among the staff of the 1st respondent college till he resigned from service in July, 1994. While it is true that Rule 7(4) requires the educational agency to follow such procedure as may be prescribed by the Government from time to time in this regard, no such procedure has been brought to the notice of this Court. I n Krishnamacheryulu1, the Supreme Court held that teachers, who teach and impart education, get an element of public interest in the performance of their duties and that, as a consequence, the element of public interest required that the conditions of service of those employees be regularized on par with government employees. The Supreme Court held that teachers, appointed to posts in private institutions, were also entitled to seek the benefit available to others and were entitled to equal pay on par with government employees under Article 39(d) of the Constitution. To quote:- “……… It is not in dispute that executive instructions issued by the Government had given them the right to claim the pay scales so as to be on par with the Government employees. The question is: when there is no statutory rules issued in that behalf, and the Institution, at the relevant time, being not in receipt of any grant-in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an Institution to impart education, which is a fundamental right of the citizens. The teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees on par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial process, they need and seek the protection of law. 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 Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution. ……..” (emphasis supplied) In addition to the fact that the doctrine of “equal pay for equal work” would entitle the petitioner to claim parity in scales of pay with government pay scales, the statutory rules, notified in G.O.Ms. No. 29 dated 03.02.1987, also confers on him a legal right to do so. The Division Bench of this Court in Y. Sidda Reddy Vs. Govt. of A.P.[4] observed: “….. From an examination of the judgment s of the Supreme Court, the settled position of law with regard to the grant-in-aid is that the State is bound to render financial assistance only to those private educational institutions where education is imparted to children upto the age of 14 years. If the State decides to extend some financial assistance to private educational institutions imparting education to children above 14 years, the State has the discretion to decide to what extent such financial assistance would be rendered so long as the State does not discriminate between the private educational institutions falling in the same class. The decision of the State to extend some financial assistance to any educational institutions imparting education to children above 14 years does not relieve the management of such private educational institutions of its obligations to pay the appropriate salary and other benefits which are either agreed between the management and the employee or imposed upon the management by law………” (emphasis supplied) As held by the Division bench in Y. Sidda Reddy4, the mere fact that the State has not extended aid to the post in which the petitioner is working, as an Assistant Libratian in the 1st respondent college, would not relieve the 1st respondent of its obligation to pay him the appropriate salary, and other benefits, imposed upon them by law and since, in the present case, such an obligation has been imposed on the 1st respondent by the statutory rules notified in G.O.Ms. No. 29 dated 08.02.1987, and a corresponding legal right is conferred on the petitioner, he would be entitled to the benefit of government pay scales. Having extracted work from the petitioner as an Assistant Librarian, the 1st respondent was statutorily bound to comply with the requirement of Rule 7(4) of the Rules notified in G.O.Ms. No.29 dated 05.02.1997 and extend to him the regular scales of pay on par with Government employees. A Division bench of this Court, S.V.V.P.V.M.C. Mahila Vidya Peeth v. Smt. M.D. Soujana[5], while referring to the very same Rule 7(4), observed: “…….The afore-extracted rule, which provides for payment of salaries by the educational agency of any private institution to its staff as per the government scales of pay in no uncertain terms, obligates the appellant to pay to its staff the salaries and allowances as prescribed by the government. This condition, as regards the payment of government scales has no nexus with nor is dependent upon the appellant institution receiving grant-in- aid. It is, therefore, impermissible for the appellant to rely upon the factum of its Science Department not being admitted into grant-in-aid as a reason for denying government scales to respondent Nos.1 and 2. There is an absolute obligation cast upon the appellant to pay the government scales and the appellant cannot be allowed to search for excuses to deny this benefit to respondent Nos.1 and 2……..” (emphasis supplied) In view of the law laid down by the Supreme Court and the Division bench of this Court in the aforesaid judgments, the 1st respondent is obligated to extend to the petitioner the benefit of scales of pay on par with that of the Government scales of pay. On the question of waiver it must be borne in mind that statutory provisions made in public interest, and based on public policy, cannot be waived. Rule 7(4), which ensures the Government pay scales to employees working in unaided educational institutions is in public interest as it seeks to ensure that they are adequately monetarily compensated thereby ensuring higher standards in private degree colleges. A right can be waived by the party for whose benefit certain requirements or conditions have been provided for by a statute subject to the condition that no public interest is involved therein. (Krishna Bahadur v. Purna Theatre[6]). A bald plea of waiver cannot defeat statutory provisions made in larger public interest. (Joginder Singh Sodhi v. Amar Kaur[7]; Shalimar Tar Products Ltd v. H.C. Sharma[8] and Pulin Behari Lal V. Mahadeb Dutta[9]. The mere fact that the petitioner resigned from service cannot be construed as a waiver and, in any event, the petitioner could not have waived the rights accrued to him under Rule 7(4). An agreement entered into between the college and the employee agreeing to waive their right for arrears of pay came up for consideration before the Division bench in Md. Soujana5 referred to hereinabove and the Division bench observed: “………Therefore, in our opinion, Rule 7(4) is conceived in public interest and not for the benefit of any individual. Even if respondent Nos.1 and 2 signed the agreement in a “take it or leave it” situation leaving them with no other choice, but to meekly to the unreasonable demand of the employer, such an agreement does not constitute an estoppels or waiver against seeking implementation of Rule 7(4) of the Rules. In the context of non-supply of documents in disciplinary proceedings, the Supreme Court in State Bank of Patiala v. S.K. Sharma: (1996)3 SCC 364 held that the plea of waiver of requirement of complying with a statutory rule cannot be raised in cases where the rule is conceived in public interest……..” The plea of waiver, therefore, necessitates rejection. With regards the contention regarding delay and latches it is well settled that the rule which states that stale and belated claims shall not be entertained is a rule of practice and cannot be exalted into a rule of limitation. (Chandra Bhushan Vs. Dy. Director, Consolidation, U.P.,[10]). There is no time-limit prescribed for filing a writ petition. All that the court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him. Delay in filing a Writ Petition cannot be examined as if it was a case under Section 5 of the Limitation Act, 1963. (State of U.P. v. Raj Bahadur Singh[11]). The rule, which says that the Court may not enquire into belated and stale claims, is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party, on the grounds of laches or delay, is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. (Dehri Rohtas Light Rly. Co. Ltd. Vs. District Board, Bhojpur[12]). After admission of the writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is “positively good”. (P.B. Roy v. Union of India[13]). In Karnataka Power Corpn. Ltd. v. K. Thangappan[14], the Supreme Court observed:- “…….Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercises its discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports(AIR 1970 SC 769). Of course the discretion has to be exercised judicially and reasonably. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd(1874) 5 PC 221) was approved by this Court in Moon Mills Ltd. v. M.R. Meher(AIR 1967 SC 1450) and Maharashtra SRTC v. Shri Balwant Regular Motor Service(AIR 1969 SC 329) Sir Barnes had stated: “Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy……..” (emphasis supplied) Under Article 226 of the Constitution this Court would, normally, refuse to exercise its discretion to entertain a writ petition on the ground of inordinate delay or laches when third party rights are created or if entertaining the writ petition would cause substantial injustice to the respondents. Where a manifestly illegal action is under challenge, though belatedly, this Court, while exercising its discretion to entertain the writ petition, would appropriately mould the relief to be granted. In the present case, it is the 1st respondent which has benefited by the delay on the part of the petitioner in invoking the jurisdiction of this Court, as the amount legitimately due to him, atleast from the year 1987 when the Rules came into force, is now required to be paid to him only after a lapse of 22 years. Laches itself is, therefore, no ground to disentitle relief to the petitioner herein. Keeping in view the petitioner’s delay in approaching this Court, for four and half years after he resigned, it is but appropriate that the relief to which he is entitled be appropriately moulded keeping in view the laches on his part. I consider it appropriate to deny him the claim of interest for the belated payment on the part of the 1st respondent. The 1st respondent shall make payment to the petitioner all the arrears