* THE HONOURABLE SRI JUSTICE V.ESWARAIAH * THE HONOURABLE SRI JUSTICE R.SUBHASH REDDY AND * THE HONOURABLE SRI JUSTICE VILAS V AFZULPURKAR + WRIT PETITION Nos.23485, 25627, 25977, 26067, 26068, 27080, 27081, 27082, 27189, 27611, 28441, 28468, 28478, 28482, 28491, 28501 of 2007, 4161, 4225, 4356, 4379, 4410, 1230, 1361, 2419, 3712, 3849, 4116, 4124, 4154 of 2008, 17468, 17504, 17473, 17477 of 2009 % Dated 24.11.2009 # P.Subramanyam Reddy, S/o. Jagannadha Reddy, aged about 37 years, Part-time Lecturer in Radio & Television Course, Government Junior College, Irala, Chittoor District and others. …PETITIONERS V. $ The State of Andhra Pradesh, rep by Principal Secretary to Government, Education (IE.1) Department, Secretariat, Hyderabad – 500 022 And two others. …RESPONDENTS ! Counsel for the petitioners: M/S. M.Surender Rao D. Linga Rao Laxma Reddy T. Suryakaran Reddy V.R.Reddy Kovvuri K. Narayana Venkateshwarlu Gummadavelli K. Satyanarayana Murthy K. Srinivasa Prasad K.S.V.Subba Rao ^ Counsel for the Respondents: Government Pleader for Services I & II < Gist : > Head Note: ? Cases Referred: 1 2009 (5) ALD 58 (SC) 2 (2006) 1 SCC 667 IN THE HIGH COURT OFJUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE 24TH DAY OF NOVEMBER, TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE V.ESWARAIAH THE HON’BLE SRI JUSTICE R.SUBHASH REDDY AND THE HON’BLE SRI JUSTICE VILAS V AFZULPURKAR WRIT PETITION Nos.23485, 25627, 25977, 26067, 26068, 27080, 27081, 27082, 27189, 27611, 28441, 28468, 28478, 28482, 28491, 28501 of 2007, 4161, 4225, 4356, 4379, 4410, 1230, 1361, 2419, 3712, 3849, 4116, 4124, 4154 of 2008, 17468, 17504, 17473, 17477 of 2009 Between: P.Subramanyam Reddy, S/o. Jagannadha Reddy, Aged about 37 years, Part-time Lecturer in Radio & Television Course, Government Junior College, Irala, Chittoor District and others. …Petitioners AND The State of Andhra Pradesh, rep. By Principal Secretary to Government, Education (IE.1) Department, Secretariat, Hyderabad – 500 022. And two others. …Respondents The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH THE HON’BLE SRI JUSTICE R.SUBHASH REDDY AND THE HON’BLE SRI JUSTICE VILAS V AFZULPURKAR WRIT PETITION Nos.23485, 25627, 25977, 26067, 26068, 27080, 27081, 27082, 27189, 27611, 28441, 28468, 28478, 28482, 28491, 28501 of 2007, 4161, 4225, 4356, 4379, 4410, 1230, 1361, 2419, 3712, 3849, 4116, 4124, 4154 of 2008, 17468, 17504, 17473, 17477 of 2009 COMMON ORDER (per the Hon’ble Sri Justice Vilas V Afzulpurkar) A large number of batch of O.A.s was decided by the Andhra Pradesh Administrative Tribunal under the impugned orders herein and the O.A.s were dismissed. The applicants in all the O.A.s are Part-time Lecturers working in Vocational Colleges of the Government. All the applicants are aggrieved by the proceedings of the Commissioner of Intermediate Education passed with regard to each of the applicant whereby, the minimum time scale granted to them was withdrawn with retrospective effect and all of them had questioned their individual orders before the Tribunal in the respective O.A.s. Various contentions were raised before the Tribunal by the applicants claiming that irrespective of their entitlement for regularization of their service, they are entitled to the minimum time scale in terms of the various orders passed by the Government to which, reference will be made herein at appropriate place. The Tribunal had examined the said contentions and negatived the same on legal as well as factual grounds by holding that none of the applicants were eligible to avail the said minimum time scale of pay and consequently impugned orders in each case withdrawing the said benefit was justified. Consequent upon the dismissal of the O.A.s, this batch of writ petitions is filed by various applicants. Apart from the present batch of cases, one writ petition No.27668 of 2007 arising out of the O.A.No.7679 of 2006 came to be decided by a Division Bench of this Court. By order dated 02.04.2008, the said writ petition was dismissed upholding the impugned order of the Tribunal on the ground that petitioner does not satisfy the condition of minimum service of five years as on 25.11.1993 and also the relaxed condition as per G.O.Ms.No.101, Higher Education (IE.1) Department, dated 29.07.2006 and consequentially not entitled to minimum time scale of pay. This Court, therefore, approved the action of the Commissioner and Director of Intermediate Education in withdrawing the said benefit from the applicants. The rest of the batches of writ petitions, directed against the other O.A.s under common impugned order herein, came up for hearing before another Division Bench of this Court. It was contended by the learned counsel for the petitioners in the said batch that the earlier Division Bench, which dismissed the writ petition No.27668 of 2007 had proceeded on the footing that the eligibility requirements for regularization of minimum time scale being one and the same and the petitioners being admittedly not satisfying the said requirements, are held disentitled for the minimum time scale. The contention of the petitioners was therefore, that the said aspect of the regularization and entitlement for the minimum time scale being different and distinct, clubbing of the said two issues together and denying relief to the applicant was not justified. The later Division Bench, which has considered the rest of the batch, agreed with the said contentions of the petitioners and consequentially being unable to agree with the view of the first Division Bench referred to above, directed the Registry to refer this batch of cases to a full bench for final adjudication and consequentially, as per the orders of the Hon’ble the Chief Justice, these matters are listed for hearing before us. We have heard M/s. M.Surender Rao, D.Linga Rao, Lakshma Reddy, T.Suryakaran Reddy, V.R.Reddy Kovvuri, K.Narayana, Venkateswarlu Gummadavelli, K.Satyanarayana Murthy, K.Srinivasa Prasad, K.S.V.Subba Rao, appearing for the petitioners. Learned counsel for the petitioners contended that the policy of the Government to extend the minimum time scale of pay was as a result of the directions of the Andhra Pradesh Administrative Tribunal in O.A.No.45811 of 1991 dated 16.10.1992 and basing on the same directions, a scheme was formulated and the said scheme is enforced by issuing G.O.Ms.No.166 Education (CE.1) Department, dated 08.06.1994. Learned counsel has relied upon para 9 of the said G.O., which, according to the learned counsel, is the only requirement for eligibility for the said minimum time scale of pay. para 11 of the said G.O., according to the learned counsel, relates to the scheme of regularization. Learned counsel also contended that the said policy was further amplified in G.O.Ms.No.352 Education (IE.1) Department, dated 01.10.1994, wherein also, minimum time scale of pay is relevant to the para 4 of the said G.O., whereas, para 5 relates to the regularization. Learned counsel also relied upon para 7 of the said G.O. to emphasize that the pre-condition relating to regularization are not applicable for the minimum time scale of pay and as such, irrespective of the petitioners fulfilling the pre-conditions for seeking regularization, if they fulfil the conditions in para 4 of G.O.Ms.No.352 Education (IE-1) Department, dated 01.10.1994, they are entitled for the minimum time scale of pay. Therefore, the contentions that paras 4 and 5 of the said G.O. are independent of each other, which has not been kept in mind while denying the said benefit to the petitioners. The petitioners have also contended that the first Division Bench, while considering the writ petition No.27668 of 2007 under order dated 02.04.2008, has not been appraised of the aforesaid distinction and the independent benefits confirmed in paras 4 and 5 of the said G.O. and consequential clubbing of the requirements for regularization as part of the requirements for earning minimum time scale, as held by the Division Bench, requires reconsideration. Per contra, learned Government Pleader for Services I and II contended firstly that the impugned order as well as the decision of the first Division Bench is correct. The policy of the Government is concerned, which is spelt out in various G.O.s issued on the subject, the entitlement as to minimum time scale to the part time lecturers has to be considered in terms of their fulfilling the requirements under the various G.O.s. Reliance and reference was made to several G.O.s issued by the Government from time to time and the most crucial among them are G.O.Ms.No.166 Education (CE-1) Department, dated 08.06.1994, G.O.Ms.No.352 Education (IE-1) Department, dated 01.10.1994, G.O.Ms.No.101 Higher Education (IE-1) Department, dated 29.07.2006, apart from the provisions of A.P. Act 2 of 1994 and the recent decision of the Supreme Court in A. Manjula Bhashini and others v Managing Director, A.P. Women’s Co-operative Finance Corporation Ltd. and another[1]. We have considered the aforesaid contentions. The principle question that falls for consideration, therefore, is whether the pre-condition required under the said G.O.Ms.No.352 Education (IE-1) Department, dated 01.10.1994, is necessary to be fulfilled before the claim for minimum time scale of pay as claimed by the part time lecturers in vocational Government colleges. In the decision of the Supreme Court in A. Manjula Bhashini (1 supra), the Hon’ble Supreme Court has considered the validity of the A.P. Act 2 of 1994, as amended by the Amendment Act 3 and 27 of 1998. It was noticed that thousands of persons were employed in different departments of the Government and Agencies / Instrumentalities of the State on daily wages or Nominal Muster Roll or Consolidated Pay or Part-time basis. In some cases, employment was given despite of the fact that the sanctioned posts were not available. To check this menace of irregular appointments, which was creating unwanted financial burden on the State and thereby adversely affecting the welfare schemes and development programmes, the Andhra Pradesh (Regulation of appointments to public services and rationalisation of staff pattern and pay structure) Ordinance, 1993 was promulgamated and published on 25.11.1993. The said ordinance is later adopted by the Legislative Assembly as A.P. Act 2 of 1994 and one of the pre-conditions thereto, was totally banning such appointments in the institutions covered by the Legislation. Section 2(ii) of the A.P. Act 2 of 1994, which defines daily wage employee, is as follows. “2(ii) ‘daily wage employee’ means any person who is employed in any public service on the basis of payment of daily wages and includes a person employed on the basis of nominal muster roll or consolidated pay either, on full- time of part-time or piece rate basis or as a workcharged employee and any other similar category of employees by whatever designation called other than those who are selected and appointed in a sanctioned post in accordance with the relevant rules on a regular basis.” Section 3 of the A.P. Act 2 of 1994 prohibited daily wage appointments and regulation of temporary appointments and provides as follows. 3. Prohibition of daily wage appointments and regulation of temporary appointments:- (1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited. 3(2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange. Section 7 of the A.P. Act 2 of 1994 prohibited regularisation of service of any daily wage employee, which is extracted below. 7. Bar for regularisation of services: - No person who is a daily wage employee and no person who is appointed on a temporary basis under Section 3 and is continuing as such at the commencement of this Act shall have or shall be deemed ever to have a right to claim for regularisation of services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reason. The Government, however, formulated a scheme in G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, which is intended to provide relief to certain category of employees from the rigour of Section 7 of the A.P. Act 2 of 1994, provided such persons fulfil the pre-conditions enumerated under the said G.O. The conditions required are as follows: Government accordingly decided that the services of such persons who worked continuously for a minimum period of 5 years and are continuing on 25.11.1993 be regularised by the appointing authorities subject to the fulfilment of the following conditions. 1. The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularised. 2. They should be within the age limits as on the date of appointment as NMR/Daily wage employee. 3. The rule of reservation wherever applicable will be followed and backlog will be set-off against future vacancies. 4. Sponsoring of candidates from Employment Exchange is relaxed. 5. Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission / District Selection Committee. 6. In the case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at fixed percentage of P.S. charges and as soon as the work is over, the services of Workcharged establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade Service. Similarly, with regard to the Part-time employees, the State Government issued G.O.(P) No.112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997, for their regularisation of Part-time employees who had worked continuously for a minimum period of 10 years and were continuing on 25.11.1993, subject to the following conditions. 1.“Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission or as the case may be, the District Selection Committee. 2. The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his or her services have to be regularised. 3. The person should be within the age limit as on the date of appointment as part-time employees. 4. The rule of Reservation wherever applicable will be followed and backlog will be set off against future vacancies. 5. The sponsoring of candidate from Employment Exchange is relaxed. 6. If there are two candidates, one part-time and the second one a full-time employee (Daily Wage employee) of any category or name and there exists only one vacancy, the senior most between the two in terms of continuous service already rendered prior to 25.11.1993 treating two years of part-time service as one year of full-time service, relative seniority will be calculated and regularisation will be suggested for the senior among the two accordingly. 7. The regularisation of services of full-time employee already made in terms of G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994 will not be reopened for giving effect to the present order.” To give legislative basis to the said scheme, the A.P. Act 2 of 1994 was amended by Amendment Act 3 of 1998. Insofar as the portion, which is relevant for our purpose, Section 7, which was amended, reads as follows: 3. Amendment of Section 7. In Section 7 of the Principal Act: - a) In the opening paragraph of the expression, “Section 3 and”, the expression, “section 3 and no person who” shall be substituted; b) In the first proviso, for the words “provided that,” the words “provided also that” and in the second proviso, for the words “provided further that”, the words “provided also that” shall respectively be substituted; c) After the opening paragraph and before the first proviso so amended, the following provisions shall be inserted, namely: “Provided that the services of a person, who worked on daily wage/NMR/Consolidated pay/Contingent worker on full time basis continuously for a minimum period of five years and is continuing as such on the date of the commencement of the Act shall be regularised in accordance with the scheme formulated in the G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated the 22nd April, 1994; Provided further that the services of a person who worked on part-time basis continuously for a minimum period of ten years and is continuing as such on the date of the commencement of this Act shall be regularised in accordance with the scheme formulated in G.O. (P) 112, Finance & Planning (FW.PC.III) Department, dated the 23rd July, 1997.” The said A.P. Act 2 of 1994 was further amended by the Amendment Act 27 of 1998, adding a Proviso to Section 7 of the A.P. Act 2 of 1994 is as follows. 4. Amendment of Section 7. In section 7 of the principal Act for the first proviso, the following proviso shall be substituted, namely: - Provided that the services of those persons continuing as on the 25th November, 1993, having completed a continuous minimum period of five years of service on or before 25th November, 1993 either on daily wage, or nominal muster roll, or consolidated pay or as a contingent worker on full time basis, shall be regularised in substantive vacancies, if they were otherwise qualified fulfilling the other conditions stipulated in the scheme formulated in G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated the 22nd April 1994”. In the aforesaid decision of the Supreme Court, the validity of the said Amendment Acts, as well as the schemes framed under G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, and G.O.(P) No.112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997 were upheld. As they are one-time measures and not a continuing scheme and the cut off date of 25.11.1993, i.e. the date on which the ordinance was first published and enforced, they were upheld to be valid. Thus, only those persons who fulfil the requirements under G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, and G.O.(P) No.112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997, as the case may be, alone could stand insulated against the rigour of Section 7 of the A.P. Act 2 of 1994. All Part-time employees, therefore, must satisfy the requirement of G.O.(P) No.112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997, failing which, Section 7 of the A.P. Act 2 of 1994 would operate. The appointment of part time lecturers in Government Degree/ Junior Colleges was found necessary on account of Lecturers/Junior Lecturers proceeding on long leave for a month or more and for the existing staff in the college, being unable to bear the extra teaching work, the Government, under G.O.Ms.No.1645, Education (M1) Department, dated 20.08.1982, permitted the engagement of part time lecturers in the concerned Degree/Junior Colleges by making them payment on hourly basis. Their remuneration was initially fixed at Rs.10/- per hour, which was subsequently revised at Rs.20/- per hour, subject to the maximum of Rs.1,440/- per month. Sometime thereafter, some part time lecturers approached the Andhra Pradesh Administrative Tribunal in O.A.No.45811 of 1994 and by judgment of Tribunal dated 16.10.1992 therein, inter alia, the following directions were issued. …Part-time lecturers who have been working in regular vacancies or where work justified appointment of a regular Lecturer for more than 3 years by 30.04.1991 or teaching over 16 periods per week shall be allowed to continue till the completion of selection and appointment under this Scheme. They should be replaced only by a regularly selected lecturer/junior lecturer and not by another part-time lecturer. They should be paid the salary calculated on the minimum of the scale of pay + allowances instead of hourly basis with effect from the commencement of the Academic year 1992- 93. The grant of minimum of scale of pay may not by itself confer any higher right for selection under the scheme. While the Government was contemplating and considering the said directions of the Tribunal, the A.P. Act 2 of 1994 came into force with effect from 25.11.1993. Later, G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994 was also issued and taking all these aspects into consideration, the Government issued G.O.Ms.No.166 Education (CE.1) Department, dated 08.06.1994. Paras 9 to 12 of G.O.Ms.No.166 Education (CE.1) Department, dated 08.06.1994 are relevant for our purpose and are extracted hereunder. 9. The Government after careful consideration hereby therefore orders. That the part-time Lecturers who have been working in regular vacancies or where work justified appointment of regular Lecturer for more than 3 years by 30.04.1991 or teaching over 16 periods per week shall be paid the salary calculated on the minimum scale of Rs.1810-3250 (RPS, 1986) and Rs.3640-7580 (RPS, 1993) for Lecturers and Rs.1550-3050 (RPS, 1986) and Rs.3110-6380 (RPS, 1993) for Junior Lecturers + allowance instead of hourly basis with effect from the commencement of the academic year 1992- 93. 10. The Commissioner of Collegiate Education / Director of Intermediate Education are directed to take immediate necessary action to effect the payment of salary calculated at the minimum of pay scale as stipulated in Para-9 of these orders. 11. Government also hereby order that , as the scheme formulated by the Government in G.O. 7th read above, is more liberal, as it reflects the intention of the Government for regularisation of existing personnel who are working as daily wage / NMR etc., which was also upheld by the Supreme Court of India, the services of such of those part-time lecturers / junior lecturers who are working against regular vacancies and who have had 16 hours of work in a week, who have put in 5 years of service by 25.11.1993 subject to possessing the qualifications prescribed for the post be regularised as Lecturers / Junior Lecturers with effect from the date of issue of orders. 12. They are therefore, directed to submit proposals for regularisation of Part-time Lecturers / Junior Lecturers working in Government Degree / Junior Colleges who satisfied all the above directions, as per the orders at Para-11 above. The said G.O. relating to the lecturers / junior lecturers working in Government Degree / Junior Colleges was made applicable specifically for Part Time Vocational Junior Lecturers in Government Junior Colleges vide G.O.Ms.No.352 Education (IE.1) Department, dated 01.10.1994. paras 4 to 8 thereof, are relevant and are extracted hereunder. 4. As the scheme formulated in G.O.Ms.No.212, Finance and Planning (Fin) Department, dated 22.04.1994 is liberal and as it reflects the intention of the Government for regularisation of existing personnel who are working on daily wage/NMR etc., which was also upheld by the Supreme Court of India, Government, through the G.O.Ms.No.166, Education Department, dated 08.06.1994 extended similar facilities to the part time lecturers and ordered that the part time lecturers who have been working on regular vacancies or where work justified appointment of regular lecturer for more than 3 years by 30.04.1991 or teaching over 16 periods per week shall be paid the salary calculated on the minimum scale of pay of 1810-3230/- (Revised Pay Scales, 1986) and 3640-7580 (Revised Pay Scales, 1993) for Lecturers and Rs.1550 – 3050/- (Revised Pay Scales, 1986) and Rs.3110 – 6380/- (Revised Pay Scales, 1993) for junior Lecturers plus all usual allowances instead of payment of salary on hourly basis with effect from the commencement of the academic year 1992 – 1993. 5. Government have further ordered in the said G.O.Ms.No.166, Education Department dated 08.06.1994 that the services of such of those Part time Lecturers / Junior Lecturers who are working against regular vacancies and who have had 16 hours of work in a week, who have put in 5 years of service by 25.11.1993 subject to possessing the qualifications prescribed for the post be regularised as Lecturers / Junior Lecturers with effect from the date of issue of orders. 6. In the circumstances explained above and keeping in view of the importance and thrust given to the Vocational Course by the Government of India and also taking into consideration the fact that these courses are job-oriented, Government have decided to consider the request of Part-Time Vocational Junior Lecturers Association sympathetically and on the same analogy of the orders issued in the G.O.5th read above, Government hereby order that the orders already issued in