Dismissed

Dr.Garimella Prabhakar, v. The State of Andhra Pradesh

Andhra Pradesh HC9 Sept 2022WP/8444/2021

Case brief

AI extract

What is this about?

Three writ petitions challenging the denial of notional increments for teachers who availed of lien to serve in private engineering colleges. The Court upheld the denial, ruling that service in a private college is non-pensionable and not entitled to increments, and the grant of lien was improper.

What did the court decide?

The Writ Petitions were dismissed; no order as to costs.

Dr.Garimella Prabhakar, Vs The State… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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WRIT PETITION Nos.8444 of 2021 + 13701 and 15794 of 2020

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COMMON ORDER :

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Writ Petition No. 8444 of 2021 is filed under Article 226 of

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the Constitution of India, claiming the following relief:

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“…..Issue an order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 3^rd respondent herein in not considering the application of the petitioner dated 22.02.2021 received on 23.01.2021 or placed before the 2^nd respondent Executive Council, the policy taking body is bad, illegal, arbitrary and unconstitutional and also contrary to the true spirit A.P. Universities Act, 1991 and consequently direct the 2^nd respondent Executive Council and the 3^rd respondent Registrar herein to consider the petitioner’s application dated 22.02.2021 received on 23.02.2021 in their Executive Council as per existing lien policy on its merits without any influence or Letter No. 927855/UE/A2/2019, dated 15.08.2020 and pass such other orders.”

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Writ Petition No.13701 of 2020 is filed under Article 226 of

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the Constitution of India, claiming the following relief:

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“…..Issue an order or direction more particularly one in the nature of Writ of Mandamus for in-action of the 1^st respondent by not directing the 3^rd respondent herein to consider and implement the proceedings of the 2^nd respondent vide Lr.No.APSCHE/SECY/Lien period 2019, dated 30.07.2019 with letter and spirit is bad, illegal, arbitrary and unconstitutional for the last eight months and consequently direct the respondents 3 to 5 herein to

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implement the said proceedings by further directing to ratify the notional increments of the petitioner for the lien period after returning from the foreign service as contemplated under Fundamental Rule No. 124 consequently direct the Respondent Nos. 3 to 5 herein to ratify the same by sanctioning of notional increment for the lien period after joining in the 3^rd respondent University from the foreign service and pass such other orders.”

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Writ Petition No.15794 of 2020 is filed under Article 226 of the Constitution of India, claiming the following relief:

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“…..Issue an order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 1^st respondent herein issuing the impugned proceedings vide Letter No. 927855/UE/A2/2019, dated 15.08.2020 by not considering the proceedings of the 2^nd respondent vide Lr.No.APSCHE/SECY/Lien period/2019, dated 30.07.2019 and also Lr.No.APSCHE-Ums-C1-1001/SVUNotional increment/ 2020, dated 20.07.2020 is bad, illegal, arbitrary, ultra virus, irrational and unconstitutional under the scheme of the Constitution of India and consequently set aside the impugned proceedings Letter No. 927855/UE/A2/2019, dated 15.08.2020 of the 1^st respondent and further direct the 3^rd respondent to retain the sanctioned notional increments to the petitioners as they are on par with several other teachers by re-fixing of salary of the petitioners under revised pay scales 2016 with notional increments and pass such other orders.”

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Since the facts and issue involved in both the writ

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petitions is one and the same, I find it expedient to decide both the matters by common order.

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For the sake of convenience, W.P.No. 8444 of 2021 is taken as leading case.

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Heard Mr. Raavinuthala V.S.R, learned counsel for the petitioners; learned Government Pleader, Higher Education and Mr. Butta Vijaya Bhaskar, learned Standing Counsel for S.V.University appearing for respondents.

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The brief case of the petitioner in W.P.No. 8444 of 2021 is that he is a retired professor of the 4^th respondent College on 28.02.2021. The petitioner submitted an application 22.02.2021 to the 3^rd respondent requesting not to stall his notional increments, which is pending for consideration before the respondents 2 and 3 or the 2^nd respondent Executive Council in terms of earlier Syndicate recommendation through vide Roc.No.E.II(4)/CAS/95, dated 01.06.1996. The petitioner obtained prior permission from the 2^nd respondent Executive Council has availed the lien along with 29 members, who received notional increments during their foreign service (lien period), but the respondents 2 and 3 denied for five members, which contrary to the existing lien policy of the 2^nd respondent, which is not disputed by the Audit Department also. The 1^st respondent granted liberty to the University to take decision vide letter dated 15.08.2020, which is contrary to the earlier stand is the subject matter of the W.P.No.15794 of 2020. Several

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teachers also availed the benefit of the Executive Council Resolution No.A-1, dated 18.02.1992 granted lien for deputation and study leave etc., without considering the same the respondents 2 and 3 stall the notional increments. Assailing the same W.P.No.13701 of 2020 filed, wherein the University filed counter admitted the fact that the lien was granted through a resolution No. 346 (A-8) dated 20.05.1985, those teachers who rejoined duty after availing lien were sanctioned notional increments for their lien periods subject to payment of pensionary contributions as per the rates mentioned in F.R.116. The petitioner also availed the lien for three years from 03.10.1998 to 02.01.2001 along with others in terms of permission by the Executive Council. Hence the petitioner made a representation to the respondents dated 22.03.2021 to consider his request to release notional increments on par with other staff, which is pending for consideration. Hence the writ petition came to be filed.

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Per contra, 1^st respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that the petitioner and similarly placed 13 other teachers went on lien to private service to hold higher positions and to draw higher salary in the private engineering colleges in the present State and erstwhile State. The 1^st respondent appointed

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the petitioner and similarly placed teachers for providing quality technical education to the weaker and meritorious students in the University and investing crores of rupees under fee reimbursement scheme etc.,. The petitioner and similarly placed other teachers are indirectly helping the private engineering colleges to avoid recruiting the permanent teachers and also getting proposals and affiliations by showing the teachers, who went on lien from various universities on the same lines on sheer personal gains. The petitioner and others who went on lien to Private Engineering Colleges, which may be an organization, but “not an organization” as envisaged, defined or contemplated under F.R. The petitioner went on lien to a College by name M.R.Institute of Technology, GMR Nagar, Rajam, which is a private Engineering College and hence it cannot be treated as an Organization of a State. Therefore the 2^nd respondent erred in granting lien to the petitioner in the said circumstances as per said rule to serve in a private engineering college is highly illegal and arbitrary. The petitioner opted to work as a Professor in a Private Un-aided engineering college is totally on his personal purpose and to gain higher salary than drawing in a University, cannot be counted for any pensionary benefits or notional increments to be accrued for the said lien period of service and granting such relief is impermissible as per rules and law. The unaided private service rendered in the

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middle of regular service cannot be counted for increments and pensionary benefits due to the fact that petitioner has been drawing pay and allowances from the Government budget from the date of appointment to even after retirement, excluding the lien period. It is a fact that rendering service to an unaided private service in the middle of regular service cannot be counted as valid service for any purposes of calculating pensionary benefits or notional increments. Hence the writ petition is liable to be dismissed.

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Per contra , 3^rd respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that the petitioner applied for grant of lien for a period of two years and as per his eligibility, granted lien for a period of two years with effect from 04.10.1998. Later the same was extended further one year i.e from 04.10.2000 to 01.05.2001 and he reported for duty on 02.05.2001. As per guidelines the petitioner remitted an amount of Rs. 73,596/- towards Pension Contribution for his lien period. Consequently the Executive Council passed resolution and the petitioner was sanctioned notional increment for the lien period from 04.10.1998 to 01.05.2001. The Director, State Audit, Hyderabad vide letter No. 9717/A1/2013, dated 29.01.2015 clarified that the University

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teachers who had taken teaching assignments in private institutions should not be granted notional increments for their lien period. Therefore the Government was requested for ratification of earlier cases and for making statute. Though the University clarified that the teachers were sanctioned notional increments as a general policy as per Executive Council Resolution, the Audit clearly clarified that notional increments could be sanctioned, keeping in mind that it was done on earlier occasions.

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It is further contended that the Government after thorough examination of the issue vide letter No. 927855/UE/A2/2019, dated 15.08.2020 informed that notional increments could not be sanctioned to the teachers of the University for the period under lien, as they did not serve the university service as pointed out by the Audit. However the University granted lien to the petitioner and sanctioned notional increments to him as per Executive Committee Resolutions. The allegation of the petitioner that his application dated 22.02.2021 was not considered is baseless, since the pay of the petitioner is not yet re-fixed excluding the national increments, which all ready sanctioned to him. The petitioner made a request to the University Authority not to take any coercive steps in so far as his notional

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increments were concerned, till the disposal of the W.P.No.15794 of 2020 before this Court. Hence this writ petition is liable to be dismissed.

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The petitioner filed reply affidavit against the counteraffidavit filed by the respondents and denied the material averments made in the counter-affidavit and contended that the respondents using the phrase “personal benefit/ higher salary” is not fair as the petitioner was served the 4^th respondent for more than 35 ½ years and he was on lien for 2 ½ years in a private engineering college affiliated to the JNTU and rendered his total service of 38 years as a University Teacher. As part of the University policy, teachers, who were sanctioned lien, were asked to pay ‘Pension Contribution” to the University. The pension contribution was calculated at certain percentage of the higher ceiling of the scale in which the concerned teacher is placed under the prescribed under the Government Rules. The Pension Contribution is revised in tune with the revision of pay scales viz., RPS-2016 (Revision of Pay Scales-2016). In addition, other contributions to group insurance and general provident fund were also collected. All the teachers paid pension contributions and fulfilled the stipulated requirements of the University. The University has sanctioned notional increments only after ensuring

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the receipt of pension contribution from each of the teacher, which was certified and approved by the Audit Department for nearly 30 years. The audit department is raising objection with retrospective nature without any authority of law contrary to the 2008 lien policy guidelines adopted by the University in a selective and discriminatory manner. Therefore, requested to allow the writ petition.

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During hearing learned counsel for the petitioner reiterated the facts urged in the writ affidavit. Whereas learned Government Pleader, Higher Education reiterated the facts urged in the counter-affidavit and contended that the petitioner or similarly placed teachers cannot opt for private employment and the same is against the Rule 12 of the Conduct Rules of 1964, which reads as follows: “ Private Employment”

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“12. No Government employee shall, except with the previous sanction of Government negotiate for or undertake any employment or work other than that connected with the official duties”.

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Further, the respondent/ University has prescribed lien and

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deputation rules on 18.02.1992 as mentioned hereunder:

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Resolution No. 174(E-3), dated 25.09.1991:

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“II. Lien:

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1. Teachers with at least five years of regular service only are eligible for grant of lien.

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2. A Teacher may be sanctioned lien for a period calculated at the rate of one year for each five year period of regular service or proportionately, for part thereof (the period being exclusive of the periods spent by him/ her outside the University either on study leave, lien or deputation).

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3. A teacher availing lien shall execute a bond to the effect that he/ she will report back to duty in the University on completion of the lien period and serve for a period not less than the total lien period sanctioned to him/ her, failing which he/ she shall pay penalty equivalent to the basic pay that he/ she would have drawn for the un-served period had he/ she been in service.

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4. No teacher may be sanctioned lien for more than three years at a stretch.

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5. A teacher who goes on lien to an organization from the University cannot go on a further lien or deputation to another organization from that organization.

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6. A teacher who goes on “Lien” cannot be considered for conversion of lien to “Deputation” nor shall be granted deputation in continuation of lien or vice versa.

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III. Deputation:

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1. Teachers with at least five years or regular service only are eligible for consideration for grant of deputation to another organization.

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2. A teacher may be sanctioned deputation for the period calculated at the rate of one year for each five year period of regular service or proportionately, for part

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thereof (the period being exclusive of the period spent by him/ her outside the University either on study leave/ lien or deputation).

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3. No bond is to be instated upon when deputation is at the instance of the University. In all other cases a bond shall be executed as envisaged in Clause-II of the title Lien.

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4. No teacher may be sanctioned deputation for more than two years at a stretch and extendable by one more year on request.

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5. The case of teacher for deputation may be considered only when a needy organization requests the University for his/ her service on deputation.

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6. During the period of deputation, the teacher is considered to be in university service for all purposes and all the benefits that would have accrued to him/ her had he/ she continued in the University service, would accrue during deputation, provided the organization, to which the employee is deputed, pays leave salary and pensionary contribution towards retirement benefits for the period of deputation.

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Resolution of EC dated 30.10.2008.

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II. Lien:

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1. Teachers with at least five years of regular service only are eligible for grant of lien.

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2. A teacher may be sanctioned lien for a period calculated at the rate of one year for each five year period of regular service or proportionately, or part thereof (the period being exclusive of the periods spent by him/ her outside the University either on Study leave, lien or deputation).

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3. A teacher availing lien shall execute a bond to the effect that he/ she will report back to duty in the University on completion of the lien period and serve for a period not less than the total lien period sanctioned to him/ her, failing which he/ she shall pay penalty equivalent to the basic pay that he/ she shall pay penalty equivalent to the basic pay that he/ she would have drawn for the un-served period had he/ she been in service.

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4. No teacher may be sanctioned lien for more than two years at a stretch.

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5. A teacher who goes on lien to an organization from the University cannot go on a further lien or deputation to another from that organization.

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6. A teacher who reports back to duty in the University after completion of the lien period or earlier will have to serve for a period not less than the total lien period sanctioned to him/ her.

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7. No teacher may be sanctioned lien to take up an assignment in the same cadre or in a lower cadre.

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8. No teacher will be granted lien when his/ her age crosses 58 years.

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9. A teacher who goes on “lien” cannot be considered for conversion of lien to “Deputation” nor shall be granted deputation in continuation of lien or vice versa.

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III. Deputation:

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1. Teachers with at least ten years if regular service only are eligible for consideration for grant of deputation to another organization.

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2. A teacher may be sanctioned deputation for the period calculated at the rate of one year for each five year period of regular service or proportionately, for part thereof (the period being exclusive of the period spent by him/ her outside the University either on study leave/ lien or deputation).

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3. No bond is to be insisted upon when deputation is at the instance of the University. In all other cases a bond shall be executed as envisaged in Clause-3 of the title Lien.

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4. No teacher may be sanctioned deputation for more than two years at a stretch and extendable by yearn by year on request subject to the limit of 5 years inclusive of lien period if any.

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5. The case of teacher for deputation may be considered only when a needy organization requests the University for his/ her service on deputation.

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6. During the period of deputation, the teacher is considered to be in University service for all purposes and all the benefits that would have accrued to him/ her had he/ she continued in the University service, would accrue during deputation, provided the organization, to which the employee is deputed, pays leave salary and pensionary contribution towards retirement benefits for the period of deputation.

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Further, the Government has denied the lien, which reads as

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follows:

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(13). Lien means the title of government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post,

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including a tenure post, to which he has been appointed substantively.

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Therefore, learned Government Pleader for Higher Education for the respondents draws the attention of this Court with regard to fact that the petitioner went on lien to a private Engineering College namely M.R.Institute of Technology, GMR Nagar, Rajam, hence it cannot be treated as an organization of a State. So, the 2^nd respondent violated the rules as shown above in granting lien to the petitioner and committed illegality and irregularities by the University. Further it is contended that the question of accruing the service and pensionary benefits for the lien period under FR-26 does not arise for the reason that the petitioners rendered service not to the Government Organizations/ University as defined under Article 12 of the Constitution of India. Further the petitioners rendered services in non-pensionable establishment and it is a private service, hence it is invalid to consider for pension including notional increments along with regular increments. The 1^st respondent has extended A.P. Teacher Pension Rules of 1992 to the petitioners for the services rendered in the University service vide G.O.Ms.No.277, dated 02.12.1993. It is very specific in the Note under Rule 13, which reads as under:

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13. Conditions subject to which service qualified – The service of a teacher of the University shall not qualify

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unless his duties and pay are regulated by the University or under conditions determined by the University.

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Note: For the purpose of this, the expression, ‘service’ means the service under the University and the salary paid by the University from the University fund, but does not include the service in a non-pensionable establishment.

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Further learned Government Pleader for Higher Education for the respondents relied on the decision reported in

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the case “ Shanti Sports Club and Another Vs. Union of India

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and Others”¹ wherein the Hon’ble Apex Court held as follows:

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“ 71. Article 14 of the Constitution declares that:

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“14. Equality before law:- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

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The concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/ instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities.

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1 (2009) 15 SCC 705

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….While reversing the order of the High Court, this Court observed as under: (Jagjit Singh case² , SCC pp. 750-51, Para 8)

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"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law -- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence

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2 (1995) 1 SCC 745

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rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course -- barring exceptional situations -- would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world”.

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Rule 14-A of G.O.Ms.No.3, dated 05.01.2008 (Pension

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Rules for the University Teachers- amendment), which reads as follows:

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“ 14-A: Counting of service rendered under other

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Universities:- The service rendered in any other University in Andhra Pradesh under pensionable service (where these rules or the equivalent of these rules apply) which is covered under the relevant Pension Rules 1992 or other Central Government Pension rules shall alone be counted as qualifying service, provided that contribution shall be paid to the University, at the time of joining the University, by the previous employer, or by the employee concerned or proportionate basis at the prevailing rate of pension contribution for Gazetted Officers of the Andhra Pradesh Government”.

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It is made clear that the petitioners rendered service to a private organization for their personal benefits, the petitioners are not entitled for the relief under the said circumstances is sufficient to justify cause as contended by the 1^st respondent.

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Learned counsel for the petitioner contended that as per procedure followed in earlier circumstances, the case of the petitioners also shall be considered, which is also supported by the University also as per the statement made in its counter-affidavit. The learned counsel for the petitioners has contended that the respondents 2 and 3 granted lien and sanctioned notional increments to certain teachers prior to seeking the clarification from the 1^st respondent Government and has requested to consider their private service of 3 years rendered in the private unaided engineering colleges for sanction of notional increments and pension. The respondents 2 and 3 ought to have reviewed the same and apply the existing lien rules, where these respondents sanctioned notional increments irregularly in violation of law or else it would cause exchequer loss to the Government due to irregular decisions taken by the authorities to give a benefit to the petitioners and similarly placed persons, for which they are not eligible.

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Therefore, the services rendered by the petitioners in a private college, which is not pensionable service and it is purely a private service. Under the said circumstances, the petitioners are not entitled for the pension and other benefits for the lien period as claimed in the respective writ petitions.

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This Court finds that the petitioners working in private organizations for personal gains and indirectly helping the private colleges and further causing inconvenience to conduct recruitment to fill up permanent posts. The state funded Universities are the regulators for private unaided colleges including private engineering colleges. Allowing regular teachers of stand funded Universities to private colleges is nothing amounts to quid pro-quo. If such practice is continued, every Government employee would seek lien to private sector organizations with high pay and enjoy the positions by showing as they are government employees. Therefore such method cannot be acceptable, which is not proper parameters to entitle the relief as claimed by the petitioners, which is against the Rule 12 of the Conduct Rules of 1964.

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In view of the foregoing discussion, this Court feels that it is not a fit case to issue writ of mandamus in the writ petitions and same is liable to be dismissed.

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