HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos.23862 and 24673 of 2009 Dt.25.11.2009 W.P.NO.23862 OF 2009 Between: The Principal Secretary to Government, Labour, Employment and Training Department, Secretariat, Hyderabad and another … Petitioners And Dr.N.Anantha Lakshmi and others … Respondents W.P.NO.24673 OF 2009 Dr.N.Anantha Lakshmi and another … Petitioners And The Principal Secretary to Government, Labour, Employment and Training Department, Secretariat, Hyderabad and others … Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos.23862 and 24673 of 2009 ORDER: (Per Sri Justice Vilas V. Afzulpurkar) O.A.No.3292 of 2009 was filed by the petitioners in W.P.No.24673 of 2009 seeking the following prayer: “Hon’ble A.P. Administrative Tribunal may be pleased to issue an order or direction directing the respondents to consider the case of the applicants for payment salaries par with the candidates who are otherwise paid such salaries for the period during which they are permitted to prosecute their P.G. studies and to pass appropriate orders permitting the respondent No.4 Principal of the Osmania Medical College wherein the applicants herein have been prosecuting their studies under in service quota to draw the salary and to pay the same to the applicants are admitted into Osmania Medical College for prosecuting the P.G. course in pursuant to the selections made for 2008-09 after declaring the action of the respondents in not paying the salary so far while permitting them to prosecute P.G. course while paying salaries to number of Doctors who are similarly situated as illegal, void and unconstitutional offending Article 14 of the Constitution of India and to pass such other order or orders as this Hon’ble A.P. Administrative Tribunal may deem fit and proper in the circumstances of the case”. The case of the applicants in the said O.A. was that they were directly recruited as Civil Assistant Surgeons in pursuance of the selection conducted by A.P.P.S.C. The 1st applicant joined on 22.6.1993 and the 2nd applicant joined on 6.2.1988. The 1st applicant having worked for 26 days desired to prosecute Post Graduate Diploma in TB & CD during the academic years 1992 – 1993 and 1993 – 1994 in Kurnool Medical College, Kurnool. The 2nd applicant having worked for 5 days desired to prosecute Post Graduate Diploma in Obstetrics and Gynecology during academic years 1988 – 1989 and 1989 – 1990. Both the applicants were accordingly permitted to undertake course of study leading to awarding of Diploma. Since they were only probationers and in accordance with the rules governing their service, they were not treated as in-service candidates and allowed to prosecute Diploma course on their own as non-service candidates. The Government stated in the affidavit that they were paid stipend as normally admissible during the said course of study. Later both the applicants were selected for P.G. Degree in M.D. (Anesthesia) and P.G. Degree in M.D. (Pathology) at Osmania Medical College during the year 2008 – 2009 as in-service candidates. The applicants, however, are not being paid salary as demanded by them and therefore they approached the Tribunal claiming that they are entitled to deputation of salary for 36 months. Rule 11 of the Andhra Pradesh Medical Colleges (Admission into P.G. Medical Courses) Rules, 1997 (hereinafter referred to for short as ‘the Rules’) stipulates as follows: “11. (xi) Stipends:- Stipends will be paid to the Post Graduates as long as the Government continue the existing schemes for such payment and who are regular in attendance an show good progress every month. The total period during which the students are paid stipends shall not exceed 36 months for Degree Course and 24 months for Diploma Course. (a) No Post Graduate Degree holder who enjoyed the stipend earlier for 36 months is eligible for further stipend either to study post Graduate degree or Diploma in any speciality, if selected. (b) No Post Graduate Diploma holder who enjoyed the stipend earlier for 24 months is eligible for further stipend to study another Post Graduate Diploma in any speciality. However, the Post Graduate diploma holder, if selected for P.G. Degree is eligible for stipend for another 12 months only and no candidate shall be eligible for stipend for more than 36 months for entire P.G. study period. (xii) Deputation to in-service candidates selected under service quota shall be restricted to 3 years only i.e., (36 months). The candidates selected to prosecute Post Graduate courses under in-service quota shall be sanctioned deputation for not more than one course in his service or lifetime. The candidate selected under service quota shall be deputed only to such branches specified by concerned Director or Registrar, University of Health Sciences.” The above said grievance, however, was subject matter of the O.A. and as per counter filed by the Government before the Tribunal it was stated that the applicants have studied P.G. Diploma as non-service candidates and therefore reliance cannot be placed on para 11(xi)(b) of the Rules quoted above and stipend was denied to them on that ground. The Tribunal therefore came to the conclusion that since the applicants have not enjoyed stipend earlier for 24 months, they are eligible for stipend during their prosecution of Post Graduate Diploma course and consequently allowed the O.A. directing the Government to release the stipend to the applicants as the applicants are entitled to such stipend for the period they prosecuted the Post Graduate degree courses in which they got selected under the in-service quota. The said order is questioned by the Government in W.P.No.23862 of 2009 and the applicants also questioned the same in W.P.No.24673 of 2009. We have heard the learned Government Pleader for Services-I and the learned counsel appearing for the applicants. The basic grievance as claimed and is evident from the prayer in the O.A. is that as in-service candidates the applicants are entitled to deputation salary for the period of three years and the claim for salary was accordingly made in the O.A. It is further evident from the Rules that so far as in-service candidates are concerned, deputation granted to them shall not exceed 36 months, whereas for non-service candidates, the stipend is granted for a period not exceeding 36 months. The applicants had prosecuted P.G. Diploma courses earlier while they were on probation and as such it is clearly accepted by the Government in the affidavit filed in support of the writ petition that the applicants have been treated as non-service candidates and accordingly they were paid the stipend. The applicants claim that as in-service candidates they prosecuted the Post Graduate degree course and therefore they are entitled to salary on deputation for prosecuting the said course. The said claim, as above, however, was not put forward before the Tribunal and on the basis of the counter affidavit of the Government that the applicants are entitled to stipend only. O.A. was disposed of. The result of the impugned order would therefore be that the applicants, as in-service candidates, are held entitled to stipend and the same is directed to be paid to them; whereas it is claimed by the applicants that they are entitled to deputation salary. Both the learned counsel accepted that the aforesaid aspect was not clearly spelt out before the Tribunal. The Tribunal being of the impression that the claim of the applicants is for stipend, allowed the said O.A. However, in view of the categorical position as is mentioned above, it would be necessary to adjudicate upon the O.A., to decide as to whether the applicants are entitled for salary on deputation as claimed by them. Since the said aspect has not been contended nor decided before the Tribunal, we deem it appropriate to set aside the impugned order and remit O.A.No.3292 of 2009 for consideration afresh before the Tribunal. Both the writ petitions are accordingly allowed. The impugned order is set aside. The Tribunal is requested to hear and determine O.A.No.3292 of 2009 afresh uninfluenced by any of the observations made herein as expeditiously as possible. ________________ V.ESWARAIAH, J. _________________________ VILAS V. AFZULPURKAR, J. 25.11.2009 kpr