Allowed

Mr.S.P.John Wesley v. The Commissioner and Director of Intermediate Education

Telangana HC10 Mar 2011WP/25627/1999

Case brief

AI extract

What is this about?

The court held that withdrawal of minimum scale pay benefits continued for years was illegitimate, directing payment from June 1998. It issued directions for the authorities to consider regularization claims based on long service and qualifications within three months.

What did the court decide?

Directive to extend minimum scale pay from June 1998; directed regularization claim to be processed within three months.

Mr.S.P.John Wesley Vs The Commissioner and… — Pension and Retirement Benefits | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

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WRIT PETITION No.25627 of 1999

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ORDER:

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The relief sought for in this Writ Petition is to declare the action of the respondents, in not releasing the salary of the petitioner with effect from 01.07.1998, as illegal and arbitrary. A consequential direction is sought to the respondents to pay the salary to the petitioner as was paid during 1997-98.

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Facts, in brief, are that the petitioner was originally appointed as a contingent employee (night watchman), by proceedings of the third respondent-College dated 29.06.1988, with effect from 01.07.1988. Thereafter, the Commissioner and Director of Intermediate Education, Hyderabad (first respondent) issued proceedings dated 04.01.1995 permitting the petitioner to draw a minimum pay of Rs.1,375/-, with allowances from 07.10.1994, in the time scale of last grade employees for the year 1994-95, and observed that he was working against a regular aided post in the third respondent-College. While approving the annual salary statement of the third respondent-College for the year 1998-99, the first respondent deleted the petitioner’s name holding that separate orders would be issued. Since he was not getting regular salary from 01.07.1998, the petitioner has invoked the jurisdiction of this Court.

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In the counter-affidavit filed by the first respondent, it is stated that the petitioner was appointed as a night watchman in the third respondent-College in the year 1988; the third respondentCollege was admitted into grant-in-aid, vide G.O.Ms.No.162 dated 12.07.1979, with effect from 01.07.1978; the Government issued G.O.Ms.No.38 dated 01.02.1980 to the effect that all full-time contingent posts, which were created under specific government

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orders and had been in existence for a period of 10 years or more, be converted into regular last grade posts; the Government, while extending the above G.O. to non-teaching staff working in private aided junior colleges vide G.O.Ms.No.317 dated 06.06.1984, observed that no further appointment of full-time contingent employees would be made in any department with effect from 01.04.1984; the petitioner was appointed as a contingent employee in the year 1988-89, much after 01.04.1984, by which date ban on appointment of full-time contingent employees was imposed; the benefit of payment of salary in the minimum scale, as per G.O.Ms.No.362 dated 07.10.1994, is applicable only to part-time teaching staff and not to non-teaching staff; the third respondentCollege had irregularly extended the minimum scale of Rs.1,375/to the petitioner in terms of G.O.Ms.No.362 dated 07.10.1994; and, therefore, the petitioner is not entitled for minimum scale of pay.

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Sri Kowturu Pawan Kumar, Learned Counsel for the petitioner, would submit that the first respondent having extended the benefit of minimum time scale to the petitioner with effect from 07.10.1994, and having continued to extend the benefit till 1997-98, could not withdraw the said benefit to the petitioner; the petitioner’s services were being continued even as on date by the third respondent-College in the minimum scale of Rs.1,375/-; the petitioner, having put in more than 13 years of service as a contingent employee, is entitled to be regularised in terms of various government orders issued from time to time, and in the light of the law laid down by the Supreme Court in State of Karnataka v. M.L.Kesari^[1] ; and the action of the respondents in stoppage of minimum scale to the petitioner is wholly illegal.

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While G.O.Ms.No.362 dated 07.10.1994 relates to Junior Lecturers and not to contingent employees, the fact remains that

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Article 39(a) of the Constitution of India requires the State to direct its policy towards securing to its citizens an adequate livelihood. Article 43 requires the State to endeavour to provide all workers a living wage and a decent standard of life. It is not even the case of the respondents that the services of the petitioner are no longer required. Permitting the petitioner to work even today on a measly monthly salary of Rs.1,375/- per month is inhuman. Since the petitioner has been extended the benefit of minimum scale of pay, which he drew for a period of four years from 1994 till 1997-98, there is no justification in denying him the benefit of minimum scale of pay, as revised from time to time, as long as his services are continued with the third respondent-College. There shall, therefore, be a direction to the respondents accordingly.

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The respondents shall calculate the minimum scale of pay which the petitioner is entitled to, and extend him the said benefit from June, 1998 onwards (the date from which the benefit of minimum pay scale was not extended).

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In so far as the petitioner’s claim for regularisation is concerned, the Supreme Court in M.L.Kesari¹ held as under:

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“………It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in State of Karnataka v. Umadev i² , if the following conditions are fulfilled:

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(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

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(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not posses the prescribed minimum qualifications, the appointments will be

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considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

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The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadev i² , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

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The object behind the said direction in para 53 of Umadev i² is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadev i² was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006 (the date of decision in Umadev i² ) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadev i² or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadev i² as a one-time measure……..” (emphasis supplied)

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The respondents shall consider the petitioner’s claim for regularization in terms of the Government Orders in force, and in the light of the judgment of the Supreme Court in M.L.Kesar i¹ . The entire exercise in this regard, culminating in a reasoned order

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being passed, shall be completed within a period of three months from the date of receipt of a copy of this order.

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The Writ Petition is allowed to the extent indicated hereinabove. However, in the circumstances, without costs.

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RAMESH RANGANATHAN,J

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Date:10.03.2011 usd

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[1] 2010(9) SCC 247

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2 2006(4) SCC 1

Mr.S.P.John Wesley v. The Commissioner and Director of Intermediate Education

Case brief

What is this about?

What did the court decide?

Mr.S.P.John Wesley v. The Commissioner and Director of Intermediate Education

Case brief

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What did the court decide?

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