Yogini Mohalkar vs State of Andhra Pradesh and Others

P.S. MISHRA, CJ.

This appeal under Clause 15 of the Letters Patent of the Court is preferred against the judgment of the learned single Judge in the petition under Article 226 of the Constitution of India

Chequered history of the case is indicative of the fact that a seeker of justice cannot expect relief at the hands of the authorities in the Education Department of the Government pursuant to the directions of the Court if they are left to decide on issues pertaining to the claims of the Assistants in the Government Aided Schools. The first battle before his Court in W.P.7570of 1984 ended with the order of the Court which reads as follows :

"The petitioner herein is a trained graduate teacher working in private aided management school, 4th respondent herein. She was being paid in S.G.B.T. Scale of pay. The post held by the petitioner is eligible for grant-in-aid under the grant-in-aid code and the salary of the petitioner is being paid from out of the grants received from the Government. In fact it is represented that the salary of the petitioner is being paid directly by the District Educational Officer. The petitioner claims that although she is a trained teacher she was not being paid salary applicable to the SGBT teachers working in Government. Attention is invited to the judgment of this Court in W.P.No.2295/73 dated 13-6-75 and also to the Order of the Administrative Tribunal in transfer writ petition No. 1361/77 dated 15-9-1977, according to which the SGBT teachers in Government were held to be entitled to salaries in the scale of pay of Rs.150-300 with effect from 1-1-1974. Learned Government Pleader does not dispute that the aforesaid orders direct the payment of salaries in the aforesaid scales to Government teachers; but it is pointed out that in the present case the petitioner is working in private aided establishment and she cannot be considered as Government employee in order to entitle her to the payment of salary in the above scale based on the aforesaid judgments. Technically, this may be right because in so far as the private aided establishments are concerned, the Government sanctions necessary grant-in-aid under the grant-in-aid code and releases the required grant to enable the managements to pay the salaries of the teachers. In several cases the salaries are being paid directly by the District Educational Officer under the direct payment system from out of the grants sanctioned to the private managements.

There is prima facie no justification for treating the trained teachers in private establishments differently when the posts in which they were working are admitted to grant-in-aid by the Government. All the same, a direction cannot be given to the Government to pay the petitioner in the scale of pay Rs.320-580. On receipt of such representation from the management, the Government will consider the modification of the grant-in-aid to the extent required to enable the 4th respondent to pay to the petitioner salary in the aforesaid scale of pay. Necessary grant-in-aid may be released by the Government for the aforesaid purpose either to enable the private management to pay salary in the aforesaid scale of pay to the petitioner or arrange to pay the salary of the petitioner directly by the District Educational Officer."

The second seeking enforcement of the directions in the above writ petition, disposed of on 17-1-1986, ended with the following order :

"The petitioner is a School Assistant. Her case is that she is entitled for the enhanced salary as was given to others in view of her acquiring B.Ed, qualification. Though such a request was made earlier, her request was not considered and she approached this Court by filing a writ petition No.7570 of 1994. The same was disposed of on 17-1-1986 directing the respondents to consider the case of the petitioner. The operative portion of the order reads as follows:

"There is prima facie no justification for treating the trained teachers in private establishments differently when the posts in which they were working are admitted to grant-in-aid by the Government. All the same, a direction cannot be given to the Government to pay the petitioner in the scale of pay Rs.320-580. On receipt of such representation from the management the Government will consider the modification of the grant-in-aid to the extent required to enable the fourth respondent to pay to the petitioner salary in the aforesaid scale of pay. Necessary grant-in-aid may be released by the Government for the aforesaid purpose either to enable the private management to pay salary in the aforesaid scale of pay to the petitioner or arrange to pay the salary of the petitioner directly by the District Educational Officer."

The further case of the petitioner is that inspite of such a direction given by this Court, no action has been taken by the respondents. Hence, this writ petition , is filed seeking a direction to the respondents to revise and refix the pay of the petitioner by implementing the judgment in W.P.No.7570 of f984 dated 17-1-1986 and to accord all consequential and attendant benefits as regards the arrears of pay, pension and gratuity etc.

Sri Y.Venkata Sastry, the learned Counsel for the petitioner submitted that though the petitioner is entitled for the enhanced salary, the same has not been considered inspite of her giving several representations apart from the direction already given by this Court in the writ petition referred to above whereas Sri M.P. Ugle, learned Counsel appearing for the fourth respondent-management submits that as far as the management is concerned, it submitted all the papers to the Government to take necessary action. The learned Government Pleader for School Education submits that the petitioner is not entitled to get the relief which she has sought for in the writ petition; that the directions given earlier in W.P.No.7570 of 1984 on 17-1-86 does not apply to the petitioner. According to the State, the petitioner is not qualified to get the relief which she has sought for in this writ petition and if there is any representation of the petitioner pending with the State, the same will be considered in accordance with law.

From the arguments, it is clear that earlier there was a direction by this Court to consider the case of the petitioner and also that the petitioner filed several representations. As such, the State should have passed appropriate orders well in time. The delay at its instance compelled the petitioner to approach this Court with the second writ petition.

In the circumstances, this writ petition is allowed. The respondent-State is directed to consider the case of the petitioner to revise and refix her pay, if she is entitled to. Otherwise to pass an appropriate order giving reasons- This exercise shall be completed within two months from the date of receipt of a copy of this order. While passing the orders, the respondent-State shall take into consideration the directions given by this Court in W.P.No.7570 of 1984 which was disposed of on 17-1-1986."

When non-compliance of the second direction was brought by way of an action for the wilful disobedience of the directions of the Court in Contempt Case No.535 of 1995. the same was disposed of recording that proceedings in Rc.No.39642/EIV/94, dated 15-10-1994 followed by the third respondent''s proceedings in Rc.No.39642/E4/94 dated 26-9-1995 were issued in compliance with the directions of the Court and, thus, on the representation as above, the contempt case was closed.

Learned single Judge has perused the proceedings of the District Educational Officer vide Rc.No.39642/E4/94 dated 15-10-1994 and stated in the impugned judgment as follows:

"It appears that the DEO, informed the petitioner that there was no vacant post of School Assistant at Vivek Vardhini Upper Primary School, Hyderabad, and therefore, the petitioner''s case could not be considered for promotion as School Assistant- It is further observed in the said proceeding that the petitioner''s contention for awarding the School Assistant scale of pay Rs.130-250 w.e.f. 1-1-1974 was also not correct as per Act 14 of 1991, according to which, no Arts graduate/ trained graduate was eligible for School Assistant post/scale over and above the cadre strength. The DEO, however, stated in the said proceeding that as per directions of the Honourable High Court, the petitioner''s case had been referred to Government, but the Government after examining the issue with reference to Act 14 of 1991 rejected the proposal and the same was communicated vide DSE Proc.Rc.No.1640/B2-4/88dated 13-10-1994. In that view of the matter, therefore, according to the DEO, the petitioner was informed that she was not entitled for School Assistant scale of Rs.130-250 w.e.f. 1-1-1974 as per instructions contained in the Act 14 of 1991, referred to by Government in the Memo No.2151/ PS.I/87-11 dated 13-10-1994.

Learned single Judge has on the basis of the above proceeded to record further as follows :

"In proceedings Rc. No. 39642/EIV/94 dated 26-9-1995, the DEO, Hyderabad District, elaborately considered the petitioner''s case and observed that since the petitioner was not in service as on 1-4-74 and was appointed as S.G. Teacher in SGBT post in the year 1978 and she was not absorbed in a B.Ed.post as there was no vacancy of B.Ed.posts, she was not entitled to the B.Ed, scale from her initial appointment or any subsequent date. The Government in Memo No.1630/H1/ 81-8, Edn., dated 12-1-1982, which was referred to in the writ petition and was relied upon for claiming the aforesaid scale of pay, did not pass any orders or issued directions to allow the minimum of B.Ed. scale to S.G.B.T. teachers. While the matter stood thus, the Government enacted Act 14 of 1991 (A.P.E. Service, Untrained Teacher (Regulation of Service and Fixation of Pay) Act, 1991. Section 3 which pertains to such claim reads as follows:

"Notwithstanding any Government order, judgment, decree, or order of any Court, tribunal or authority the supernumerary posts created in the B.Ed. scale of Rs.130-250 in accordance with the orders issued by the Government in Memo N0.1630/H1/81-3 dated 12-1-1982 and also on 20-2-1984 in place of Secondary Grade posts of teachers in the time scale of Rs.80-150 shall and shall be deemed always to have been secondary grade post in the time scale of Rs.80-150 with subsequent increases due to revision of pay scales from time to time.''''

The DEO, therefore, informed the petitioner by the aforesaid proceeding dated 26-9-1995 that she was not entitled for the scale of School Assistant i.e., Rs.130-250 (revised Rs.320-580) and, therefore, the request of the petitioner for fixing her pay in the scale of Rs.320-580 from the date of her initial appointment allowing consequential benefits as per the prayer in the writ petition was not feasible of compliance and, therefore, her appeal was rejected."

Learned single Judge has commented that the Court cannot lose sight of the fact that no mandamus was issued by the orders of this Court in W.P.7570/84 dated 17-1-1986 and W.P.No.4083/93 dated 22-10-1994. The authorities, according to the learned single Judge were merely called upon to consider the petitioner''s case in both the writ petitions. Learned single Judge has distinguished the judgment of this Court in Maize Beedar Agricultural Research Stations v. Silar Bee 1996 (1) SLR 501 saying that in the case on hand no recalcitrance on the part of the respondents could be noticed or recorded, apart from the fact that the directions given by the High Court in two writ petitions referred to above were not in the nature of a mandamus but only called upon the respondents to consider the petitioner''s claim if she was found entitled to the same. Posing thereafter the question whether the petitioner was entitled to the same was itself left to be considered by the respondents and as far as entitlement is concerned, the respondents have expressed their inability to grant the benefits as prayed for by the petitioner in view of the provisions of Act 14 of 1991, the learned single Judge has held:

"It is pertinent to note that except challenging the validity of the aforesaid two proceedings i.e., dated 15-10-94 and 26-9-1995 in the present writ petition, the petitioner has not taken any pains to satisfy the Court how the same could be treated as illegal and void. In both the proceedings the provisions of Act 14 of 1991 have been stated to be coming in the way of petitioner''s entitlement. The decisions arrived at by the DEO, in both the proceedings are based on the provision of Sections of Act 14 of 1991 and, therefore, no arbitrariness or discrimination could be attributed to the same. It is pertinent to note that the petitioner has not questioned the vires of the said Act. If the vires is not challenged, it was incumbent upon the petitioner to satisfy the Court as to how the finding of non-eligibilily of the petitioner was not in conformity with the letter and spirit of law. I am, therefore, not inclined to grant any relief claimed by the petitioner in the present writ petition.

It is, however, submitted by the learned Counsel for the Respondent No.4 (The Secretary and Correspondent, V.V.Education Society, Jambagn) that the school management had already forwarded the particulars of arrears payable to the petitioner and accordingly, the sum required for such payment was likely to be released by the Government to the school management, which in turn would release the payment to the petitioner. Should that be so, the observations made in this writ petition shall not come in the way of the petitioner and the Respondents 2 and 3, without being influenced by any opinion expressed in this writ petition by the Court, release the payment to the petitioner expeditiousry."

True, as pointed out by the learned single Judge, the District Educational Officer in his proceedings has commented upon the eligibility of the petitioner but as noticed in the judgments of the Court in W.P.7570 of 1984 and W.P.4083/1993, it cannot be disputed that the petitioner-appellant is a trained graduate teacher working in private aided management school and was being paid in S.G.B.T. scale of pay. The post held by the petitioner-respondent is eligible for grant-in-aid under the grant-in-aid code and the salary of the petitioner is being paid from out of the grants received from the Government In its judgment dated 13-6-1975 in W.P.2295/73 this Court and in Transfer W.P. No. 1361/77 dated 15-9-1977, the State Administrative Tribunal have held that the SGBT teachers in Government are entitled to the salaries in the scale of pay of Rs. 150-300 with effect from 1-1-1974. The question that the petitioner-appellant being not a teacher in a Government School is not entitled to the payment of salary in the above scale based on the aforesaid judgment is answered by this Court in W.P.No.7570/84 in the case of the petitioner-appellant in these words:

"There is prima facie no justification for treating the trained teachers in private establishments differently when the posts in which they were working are admitted to grant-in-aid by the Government."

The above view is in tune with the judgment of the Supreme Court in State of Haryana and others Vs. Rajpal Sharma and others, . Entitlement, thus, on the admitted facts of the petitioner-appellant to the scale of pay which is revised from time to time on par with the teachers employed in the Government Schools is not disputable. Once the above entitlement is accepted the only reason why the petitioner has not been given the said scale notwithstanding the directions of this Court is to be seen in the law as enacted by the State Legislature called the Andhra Pradesh Untrained Teachers (Regulation of Services and Fixation of Pay), Act 14 of 1991. The said Act provides that notwithstanding anything contained in any rule or order of the Government or any judgment of any Court, tribunal or other authority, the untrained graduate teachers in the subjects of Science and Mathematics appointed in pursuance of G.O.Ms.No.257, Education Department, dated 10th February, 1967 and Ihe untrained graduate teachers in the subjects of Humanities appointed in pursuance of orders of Tribunal in Transferred W.P.No. 1361/76 dated 15th September, 1977 who actually handled Eighth, Ninth and Tenth classes in the secondary schools of Government, Zilla Parishad or as the case may be, aided managements in the Telangana Area of the State of Andhra Pradesh shall be entitled to the minimum of Rs.130 in the time scale of Rs.130-250 admissible to trained graduate teachers if they are appointed to posts carrying that scale with effect from the 10th February, 1967 to 31st December, 1973 and thereafter, their pay shall be regulated as per their eligibility as untrained graduate teachers in accordance with the rules and orders in force. Dealing with a similar provision in Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994, a Bench of this Court in Silar Bee''s case (supra) has held that notwithstanding such a law which speaks of not giving effect to the directions issued by the Court, the effect of any direction issued by the Court is not taken away and the obligation created by the command of the Court has to be obeyed. Learned single Judge has, however, distinguished the said judgment, as we have noticed earlier, on the ground that the Court in the said judgment was dealing with a mandamus which had been issued by the Court and has thus held as noted above that notwithstanding the above provisions creating a bar in regularisation of appointment of granting scale of pay respondents were obliged to give effect to the mandamus of the Court. We are constrained to observe when directions are given to consider a particular case on such admitted facts and determination as to eligibility by the Court while considering pursuant to such directions respondents cannot go behind the findings which are already recorded in the judgment of the Court and decided upon the facts as they like contrary to Ihe findings recorded in the judgment of the Court.

The impugned judgment for the above reasons is not sustainable. It is accordingly set aside. In view of the findings which are not in dispute it is clear that respondents are under obligation as has been determined by the Court to give the benefit of the due scale of pay of Rs.320-580 as revised from time to time with effect from the due date. The writ petition is accordingly allowed and ordered. In the result the appeal is allowed. The impugned judgment is set aside and the writ petition is ordered as above. There will be no order as to costs.