* THE HON’BLE SRI JUSTICE V.V.S. RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION Nos. 21457 AND 23506 OF 2004; 1462, 8907, AND 12917 of 2005, 11688 AND 22577 OF 2006 % 16.04.2010 Between: State Language Teachers’ Association Rep.by its State General Secretary Palla Sathaiah And others … Petitioners AND State of Andhra Pradesh, rep.by its Secretary to Government, Legislative Affairs and Justice, Hyderabad. And others. …Respondents Counsel for petitioners: Sri M.R.K.Chowdhary, Senior Counsel and Sri E.Manohar, Senior Counsel Counsel for Respondents: Sri D.V.Sitarama Murthy, Advocate General < Gist: > Head Note: ? CITATIONS: 1. 2004 (1) ALD 152 (DB) 2. (1978) 2 SCC 50: AIR 1978 SC 803 3. (1983) 2 SCC 33 : AIR 1984 SC 161 4. (1984) 3 SCC 281: AIR 1987 SC 1858 5. AIR 1992 SC 522 6. (1995) 6 SCC 16: AIR 1996 SC 188 7. (1997) 6 SCC 623: AIR 1997 SC 3828 8. (1999) 2 SCC 462: AIR 1999 SC 791 9. (2001) 4 SCC 227: AIR 2001 SC 1885 10. (2003) 1 SCC 364: AIR 2003 SC 43 11. (2003) 4 SCC 399: AIR 2003 SC 2363 12. (2004) 12 SCC 588 : AIR 2005 SC 137 13. (2006) 3 SCC 434: AIR 2006 SC 1489 14. (2009) 5 SCC 342: AIR 2009 SC 2337 15. (1973) 1 SCC 216: AIR 1973 SC 1034 16. (1974) 1 SCC 19: AIR 1974 SC 1 17. (1997) 1 SCC 326: AIR 1997 SC 1815 18. (1997) 10 SCC 142: AIR 1997 SC 1288 19. (2005) 12 SCC 752: AIR 2006 SC 523 20. (2006) 5 SCC 65: AIR 2006 SC 2100 21. (1969) 2 SCC 283: AIR 1970 SC 192 22. 1975 Supp SCC 1 : (1976) 2 SCR 347 23. (1970) 2 SCC 280: AIR 1970 SC 1292 24. (1995) 5 SCC 96 : AIR 1995 SC 1655 25. AIR 1981 SC 53 26. (1973) 3 SCC 585 : AIR 1973 SC 405 27. (1975) 2 SCC 274: AIR 1975 SC 2037 28. (1976) 4 SCC 750 : AIR 1976 SC 2250 29. (1985) 2 SCC 197 : AIR 1985 SC 421 30. (1993) 2 SCC 363 : AIR 1994 SC 1 31. (1994) 5 SCC 450 32. (1996) 7 SCC 637 : AIR 1996 SC 1431 33. (2003) 5 SCC 23 : AIR 2003 SC 1339 34. AIR 1961 SC 1486 at 1490 35. AIR 1962 SC 1753 36. AIR 1963 SC 1667 at 1673 37. AIR 1964 SC 444 38. AIR1964 SC 1230 at 1240 39. AIR 1971 SC 57 40. AIR 1971 SC 231 41. AIR 1944 FC 86 at pp.90, 91 42. AIR 1961 SC 1438 43. AIR 1966 SC 416 44. (1976) 3 SCC 219 : AIR 1976 SC 182 45. AIR 1964 SC 1581 46. AIR 1966 SC 602 : (1966) 1 SCR 994 47. AIR 1972 SC 2205 : AIR 1972 SC 2205 48. (1985) 3 SCC 230 : AIR 1986 SC 649 49. (1985) 3 SCC 620 : AIR 1985 SC 1211 50. (1989) 3 SCC 677 : AIR 1989 SC 1949 51. (1998) 1 SCC 616 : AIR 1998 SC 723 52. (2004) 8 SCC 599 53. (2005) 7 SCC 584 : AIR 2005 SC 3446 54. (1969) 2 SCC 55 : AIR 1970 SC 169 55. (1973) 1 SCC 75 : AIR 1972 SC 2455 56. (1976) 4 SCC 291 : AIR 1977 SC 682 57. (1990) 1 SCC 234 : AIR 1990 SC 325 58. (1991) 4 SCC 1 : AIR 1991 SC 2219 59. (1985) 4 SCC 124 : AIR 1985 SC 1683 60. (1971) 2 SCC 564 : AIR 1972 SC 121 61. (1985) 2 Bom CR 488 62. (2009) 8 SCC 46 63. AIR 1983 SC 803 64. (1994) 6 SCC 282 65. AIR 1981 SC 1537 66. (2009) 9 SCC 514 67. (2006) 4 SCC 1 : AIR 2006 SC 1806 68. AIR 1978 S.C., 803 69. AIR 1992 S.C., 522 70. 2004 (1) ALD, 152 71. 2003 (1) SCC 364 72. AIR 1996 S.C., 188 73. 1995 AIR (SCW) 2596 74. 1992 AIR (SCW) 119 75. 1991 AIR (SCW) 1286 76. 2009 (5) SCC 342 77. 2003 (11) SCC 614 78. AIR 2005 S.C., 137 79. 1983 (2) SCC 33 80. AIR 1969 S.C., 118 81. AIR 1967 S.C., 1889 82. 1997 (6) SCC 623 83. AIR 1987 S.C., 663 84. AIR 1970 S.C., 1292 85. AIR 1944 F.C., 86 86. 2006 (3) SCC 434 87. 1984 (3) SCC 281 88. AIR 1999 S.C., 791 89. 2000 (1) SCC 168 90. AIR 2003 S.C., 2363 91. AIR 2001 S.C., 1885 92. 1996 (3) SCC 709 93. 2007 (8) SCC 669 94. 1973 (1) SCC 216 95. 1973 (3) SCC 585 96. 2005 (12) SCC 752 97. 2006 (5) SCC 65 98. 2004 (12) SCC 588 99. 1997 (1) SCC 326 100. AIR 1966 S.C., 1423 101. 1969 (2) SCC 55 102. 1974 (1) SCC 19 103. 2009 (1) SCC 168 104. AIR 1941 F.C. 16 105. AIR 1944 F.C., 1 106. AIR 1958 S.C., 468 107. AIR 1961 S.C., 1534 108. AIR 1963 S.C., 1667 109. AIR 2003 S.C., 2236 110. AIR 1997 S.C., 2523 111. AIR 1997 S.C., 1651 112. AIR 1997 S.C., 1361 113. 1995 (1) Scale 692 114. AIR 1970 S.C., 349 115. AIR 1960 S.C., 12 116. (1957) 96 CLR 261 117. (1990) 64 ALJR 305 118. (1991) 2 All ER 712 119. (1994) 1 All ER 20 120. (2003) 4 All ER 97 121. AIR 1995 S.C., 1012 122. AIR 2009 S.C., 1788 123. AIR 2008 S.C., 1640 124. AIR 2001 A.P., 446 125. 2008 (2) S.C.C. 254 126. 2008 (1) SCC 683 127. 1997 (10) SCC 142 128. 1987 (2) SCC 720 129. 1997 (10) SCC 142 130. AIR 1960 S.C., 1080 131. 1980 SCC Supplement 524 132. 2010 (2) ALD 492 133. 2010 (3) SCC 119 THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION Nos. 21457 AND 23506 OF 2004; 1462, 8907, AND 12917 of 2005, 11688 AND 22577 OF 2006 COMMON ORDER: In view of the majority, the writ petitions stand disposed of in the following manner. (i) The impugned Act is constitutionally valid and does not violate Articles 14 and 16 of Constitution; (ii) The impugned Act does not amount to usurpation of judicial powers of Legislature. It only removed the basis for the decision of this Court in P.C.S.Naidu v Correspondent, SSRSO Upper Primary School, and it is not ultra vires; (iii) The impugned Act is silent with regard to recovery of the amounts already paid to those Grade-II Pandits who availed the benefit under G.O.Ms.No.330, dated 10.08.1983 and hence the Government shall not recover any amount actually and already paid to any of the Language Pandits Grade-II who were given benefit of Scale of Pay of Grade-I. ________________ (V.V.S.RAO, J) _________________ (N.V.RAMANA, J) ____________________ (P.S.NARAYANA, J) 16.04.2010 pln THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION Nos. 21457 AND 23506 OF 2004; 1462, 8907, AND 12917 of 2005, 11688 AND 22577 OF 2006 COMMON ORDER (Per Hon’ble Sri Justice V.V.S.Rao) INTRODUCTION Andhra Pradesh Language Pandits Grade-II (Regulation of Scale of Pay) Act, 2004 (A.P.Act No.1 of 2005) is impugned as ultra vires and arbitrary in this batch of seven writ petitions. The challenge is led by State Language Teachers Association. The impugned Act replaces and repeals State Governor’s Ordinance – Andhra Pradesh Ordinance No.5 of 2004; with the same title. The writ petitions were initially filed challenging the said Ordinance but after legislative enactment, petitions have been amended. BACKGROUND FACTS Sri E.Manohar and Sri M.R.K.Chowdhary, senior counsel appearing for petitioners and Additional Advocate General appearing for State endorse that unusual long preamble to the impugned Act reflects admitted facts. Before excerpting the same, we may give a précis of background of the case. Secondary Grade Basic Training Teachers (SGBT) and B.Ed., Assistants constitute subordinate teaching staff in the schools under the control of Government as well as local authorities like Municipalities and Panchayats. Functional inequality as well as pay disparity delineate the two classes – the latter posts require a degree in Bachelor of Education and the former posts require SGBT Certificate. Language Pandits – Grade-I and Grade-II – formed different class of teachers in schools. Here again, the posts do not have functional equality and pay parity for obvious reasons. Some time in early 1980s, Government decided to give ‘B.Ed., Assistant pay scales’ to SGBT teachers with B.Ed. Emboldened by such move, the Federation of Andhra Pradesh Teachers’ Organisations (FAPTO) agitated for Grade-I scale of pay to Grade-II Pandits. Government issued orders giving such benefit to those Grade-II Pandits working in Upper Primary Schools (UPSs). However, the benefit was given only to those working as on 11.03.1982 with necessary qualifications. This cut off date was impugned before Andhra Pradesh Administrative Tribunal (APAT) in Tajuddin Ahmed v Government of Andhra Pradesh (Order dated 17.08.1989 in Representation Petition No.2158 of 1986) which held that denial of the benefits to those falling outside the cut off date as arbitrary and discriminatory. Faced with a situation to give benefit to all the teachers irrespective of cut off date, Government issued further orders cancelling the earlier order giving benefit of higher scale of pay to Grade-II Pandits. The cancellation order was subject matter of a challenge, which was upheld. The teachers association and aggrieved individuals assailed APAT order before this Court. In P.C.S.Naidu v Correspondent, SSRSO Upper Primary School[1], a Division Bench of this Court set aside APAT order. A challenge before Supreme Court was unsuccessful and SLP was dismissed on 27.07.2004. Government then promulgated Ordinance No.5 of 2004 on 6th November, 2004, which has been replaced by A.P.Act No.1 of 2005. Preamble of the Act reads as under. Whereas, the Government of Andhra Pradesh issued orders in G.O.Ms.No.330, Education, dated 10.08.1983 allowing Grade-I Scale of Pay to all the Grade-II Language Pandits who are working in High Schools and Upper Primary Schools belonging to Government, Local Bodies and Private management’s and who possess requisite qualifications prescribed for the post of Grade-I Language Pandits as on 11-03-1982 on the ground that there is stagnation in promotions; And whereas, certain language Pandits Grade-II who were appointed after 11-03-1982 possessing Grade-I qualifications and those who were appointed prior to 11-03-1982 and acquired Grade-I qualifications after 11-03-1982 challenged the cut off date in the Honourable Andhra Pradesh Administrative Tribunal and the Tribunal in their Judgment dated 17-08-1989 in R.P.No.2158 of 1986 has allowed the Representation Petition and struck down the cut off date; And whereas, the Division Bench of the Honourable Andhra Pradesh Administrative Tribunal in their Judgment in several other O.A.No.49150 of 1991, dated 28-02-1994, O.A.No.82955 of 1990, 3406 and 3407 of 1994, dated 05-12- 1994, O.A.Nos.59969 and 970 of 1990, dated 16-01-1995 observed that the above cut off date is uniformly applicable to all persons and such a classification was made for a class of employees and held that the prescription of the cut off date is not arbitrary, illegal and dismissed the O.As.; And whereas, the Government in G.O.Ms.No.164, Finance and Planning (F.W.PRC-I) Department, dated the 1st June, 1982 have formulated a scheme of ten years and fifteen years allowing certain financial benefits to all the category of teachers and thus the Language Pandits Grade-II who acquired Grade-I qualification after cut off date were allowed Grade-I Scale on crossing fifteen years of service under Automatic Advancement Scheme applicable to all the teachers including the Language Pandits and thereby they were allowed financial benefits step by step after completion of ten years and fifteen years of service and allowed the next promotion post scale of pay and hence, there is no stagnation and the teachers are getting financial benefits on the basis of service put in by them and hence there is no necessity and justification to allow higher scale of pay to certain category of teachers merely on the basis of acquiring higher qualification; And whereas, by introduction of the Automatic Advancement Scheme, the Language Pandits Grade-II are also getting financial benefits on par with other Government employees and that no other category of Government employees in the State are getting higher scales merely on the basis of acquiring higher qualifications and hence there is no justification to give this benefit only to Language Pandits Grade-II; And whereas, the Language Pandits Grade-II will get double benefit, if the G.O.Ms.No.330, Education, dated 10th August, 1983 in their orders G.O.Ms.No.176, Education, dated 22nd December, 2000; And whereas, the Honourable Andhra Pradesh Administrative Tribunal in several O.A.Nos.377 of 2001 and batch dated 13-06-2002 upheld the G.O.Ms.No.176, Education, dated 22nd December, 2000 cancelling the G.O.Ms.No.330, Education, dated 10th August, 1983 and declared the cut off date 11th March, 1982 valid one; And whereas, the Honourable High Court of Andhra Pradesh in W.P.Nos.26260 of 2000 and batch, dated 12-09-2003 found that the orders of the Andhra Pradesh Administrative Tribunal in upholding the G.O.Ms.No.176, Education, dated 22nd December, 2000 is erroneous and contrary to law and accordingly set aside the same and dismissed the writ petition Nos.20605 of 2001 and batch filed by the Government challenging the orders of the A.P.A.T. in R.P.No.2158 of 1986, dated 17-08-1989; And whereas, the Honourable Supreme Court of India in its order dated 27th July, 2004 dismissed the SLP Nos.5869-5998 of 2004 filed by the Government against the orders of the Honourable High Court of Andhra Pradesh in W.P.No.26260 of 2000, dated 12th September, 2003; And whereas, for implementation of the G.O.Ms.No.330, Education, dated 10th August, 1983 at this length of time, huge financial commitment of rupees three hundred and ninety four crores has to be borne by the Government for payment of arrears to about 56,750 Grade-II Language Pandits and there will be a recurring expenditure of rupees sixty three crores on this account every year; And whereas, if the benefits given to this category of employees there is every chance that another category of employees in the School Education Department and other Government Departments may claim the same benefit which will be imposing recurring extra financial burden on the Government; And whereas, it is an established fact that payment of scales pertaining to a higher category of posts to holders of lower category posts merely on the basis of possessing the educational qualifications runs contrary to all norms of administration and makes a mockery of the entire process of selections based on higher qualifications for a higher posts and if this logic were to be conceded, it is possible that lakhs of employees in Government service with higher qualifications working in lower posts may approach the Court of law and ask for scales applicable to the higher posts; And whereas, there is neither any fundamental right nor any equity in such a measure which amounts to granting double benefit by virtue of implementation of automatic advancement scheme and the scarce public resources among competing sections of the society will have to be allocated with a great deal of caution, equity and accountability to the public and society; And whereas, it has been decided to give effect to the constitutional mandate by regulation of the scales of pay of the Language Pandits Grade-II working in the High Schools and Upper Primary Schools belonging to Government, Local Bodies and Private Managements, as it is very clear that the intendment of Government at the time of issuing G.O.Ms.No.330, Education, dated 10-08-1983 was only for a limited number of Language Pandits who stagnated for a certain period of time and it is certainly not the intention of the Government that for generations to come such a benefit should be given; And whereas, the Legislative Assembly of the State is not in Session and the Governor of Andhra Pradesh is satisfied that circumstances do exist which render it necessary for him to take immediate action. As the questions raised are purely in the realm of constitutional law, it may not be necessary to refer to lengthy pleadings on record. However, a mention may be made to the admitted fact that pursuant to the orders of Government, the Tribunal and this Court, till the promulgation of Ordinance on 06.11.2004, all the Grade-II Pandits who possessed or later acquired qualifications prescribed for the posts of Language Pandits Grade-I were paid salary in the scale of pay prescribed for Grade-I Pandits. THE IMPUGNED ACT The Act has six Sections. Section 2 in its two clauses defines the terms ‘Government’ and ‘Language Pandits Grade-II’. Section 3 reads as under. 3. Regulation of Pay of Language Pandits Grade-II: Notwithstanding anything contained in any order of the Government or any Court or Tribunal, the Language Pandits Grade-II shall draw the Scale of Pay attached to the said post even if they possessed or later acquired the qualifications prescribed for the post of Language Pandits Grade-I. On a plain reading, the provision with non-abstante clause declares that ‘Language Pandits Grade-II’ shall draw only the scale of pay attached to the post even if they possessed or later acquired qualifications prescribed for ‘Language Pandits Grade-I’. Section 3, therefore, purports to withdraw the benefit conferred by the Government in their order G.O.Ms.No.330, dated 10.08.1993. The legislature was aware of various Court cases which virtually enlarged the scope of G.O.Ms.No.330, in that the benefit thereunder was conferred not only on those teachers, who were working as Language Pandits Grade-II with Language Pandits Grade-I qualifications prescribed therefor or acquired qualification subsequently, but even to the Language Pandits Grade-II appointed later. So as to render any right or vested right unenforceable, the Act made provision for ‘abatement of claims’ in Section 4 of the Act, which reads as under. 4. Abatement of Claims: Notwithstanding any Government Order, Judgment, decree or order of any Court or Tribunal, the claims of Language Pandits Grade-II for allowing the pay scale of Language Pandits Grade-I shall stand extinguished from the date of commencement of this Act and accordingly; (1) The orders issued by the Government allowing to the Language Pandits Grade-II the Scale of Pay attached to Grade- I Post for possessing requisite qualification prescribed for the post of Language Pandits Grade-I shall stand cancelled. (2) No suit or other proceedings shall be instituted, maintained or continued in any Court, Tribunal or other Authority by the Language Pandits Grade-II against the Government or any person or Authority whatsoever for fixation of pay in the scale of Language Pandits Grade-I. (3) No court shall enforce any decree or order directing the grant of Language Pandits Grade-I scale to Language Pandits Grade- II. Starting with non-abstante clause, the main part of Section 4 extinguishes the claims of Language Pandits Grade-II for pay scale of Language Pandits Grade-I notwithstanding (i) the Government Order and (ii) Judgment/decree/order of any Court/Tribunal. Further, it nullifies the orders issued by Government allowing Grade-I scale of pay by duly cancelling those orders. Further more, it introduces ‘no certiorari clause’ barring suit or any proceedings in any Court, Tribunal or authority by Language Pandits Grade-II’ against the Government or any person or authority for fixation of pay in the scale of Language Pandits Grade-II. Having regard to the history of the whole exercise, the intention of the legislature is very clear that it renders all orders by the Government, Courts, Tribunals unenforceable and seeks to extinguish the rights/claims of Language Pandits Grade-II, which they had or might have got under the Government Order dated 10.08.1993 conferring on Language Pandits Grade-II scale of Language Pandits Grade- I. SUBMISSIONS Learned senior counsel for petitioners made the following submission. The impugned Act is unconstitutional, that the impugned Act arrogates and encroaches upon the judicial power vested in the judicature and that the impugned Act seeking to extinguish or nullify the claims/vested rights is arbitrary and illegal. They placed reliance on M.M.Pathak v Union of India[2], State of Gujarat v Raman Lal Keshav Lal Soni[3], Ex-Capt. K.C.Arora v State of Haryana[4], In re of Cauvery Water Disputes Tribunal[5], S.R.Bhagwat v State of Mysore[6], Chairman, Railway Board v C.R.Rangadhamaiah[7], State of Maharashtra v Tanuja[8], B.Krishna Bhat v State of Karnataka[9], P.Tulsi Das v Government of Andhra Pradesh[10], PUCL v Union of India[11], Virender Singh Hooda v State of Haryana[12], P.C.S.Naidu (supra), Bombay Dyeing v Bombay Employees Union Action Group[13] and Grand Kakatiya Sheraton Hotel & Towers Employees & Workers Union v Srinivasa Resorts Limited[14]. Learned Additional Advocate General contends that the impugned Act removed the basis for the Judgment of this Court in P.C.S.Naidu, and therefore, the benefit conferred by the Government in G.O.Ms.No.330 is no more enforceable. As the very purpose of the legislation is to deny the benefit of scale of Language Pandits Grade-I to Language Pandits Grade-II, there is no arbitrariness or infirmity in Section 4 extinguishing all claims. When the very intention of the Government in issuing G.O.Ms.No.330 restricting the benefit only to those Language Pandits Grade-II appointed on or before cut-off date and the same was extended to all those subsequent appointees also, the legislature in its wisdom rectified the anomaly, of a person holding a lower post drawing higher scale and therefore, the legislation is sustainable. He placed reliance on M/s.Hiralal Rattanlal v State of Uttar Pradesh[15], State of Jammu & Kashmir v Triloki Nath Khosa[16], State of Tamil Nadu v Arooran Sugars Limited[17], Process Technicians and Analysts’ Union v Union of India[18], P.C.S.Naidu, Virender Singh Hooda (supra), Mylapore Club v State of Tamil Nadu[19] and State of Bihar v Bihar Pensioners Samaj[20]. PRINCIPLES AND PRECEDENTS An Act of Parliament or legislature of a State is set aside by the Supreme Court or a High Court as being beyond the competence of the legislature or violative of the fundamental rights or otherwise unconstitutional. Is it permissible for the Parliament or the legislature again to make the same Act? The executive government of the State makes a policy which is either invalidated or scope of such policy is enlarged by the constitutional Court on the ground that it is arbitrary and/or discriminatory. Is it permissible for the executive Government again to promulgate a similar policy? The constitutional principles that govern these two situations are well established and settled. Various precedents have been cited by the counsel. First we may notice some of those decisions and then deal with settled principles on this aspect of constitutional law. In M.M.Pathak (supra), the validity of Life Insurance Corporation (Modification of Settlement Act), 1976 was challenged. The said Act was made by Parliament in the following circumstances. The employees and LIC entered into settlements relating to terms and conditions of class III and class IV employees including the payment of bonus, which was permissible under the provisions of LIC Act. There was one such settlement effective from 01.04.1973, to be in force for a period of four years upto 31.03.1977 inter alia providing for payment of profit sharing bonus. According to said relevant clause in the settlement, there shall be no profit sharing bonus, but LIC may from time to time grant such bonus subject to directions of Central Government and LIC agreed to pay 15% annual cash bonus. Even before the expiry of four years period, the President of India issued Ordinance curtailing the right to bonus. This evoked protests by the employees. All India Insurance Employees Association filed a writ petition before High Court of Calcutta for direction to LIC to act in accordance with settlement duly refusing to follow administrative instructions. The writ petition was allowed on 21.05.1976. A week thereafter, Parliament enacted LIC Modification of Settlement Act, whereunder the settlement relating to bonus to class III and class IV employees was made unenforceable. Before the Bench of seven Judges of Supreme Court, two grounds were urged, that the said Act contravenes Article 31(2) of Constitution as the right to property under the settlement is taken away without payment of compensation and that it infringes the fundamental right under Article 19(1)(f)