@JUDGMENTTAG-ORDER
Vilas V. Afzul Purkar, J.@mdashA 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Intermediate Education passed with regard to each of the applicant whereby, the minimum time scale granted to them was withdrawn with retrospective effect and all of them had questioned their individual orders before the Tribunal in the respective O.A.s.
2. 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.
3. 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.
4. 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.
5. 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.
6. We have heard M/s. M. Surender Rao, D. Linga Rao, Lakshma Reddy, T. Suryakaran Reddy, V.R. Reddy Kowuri, 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 CO., 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.
7. 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.
8. 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.
9. 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 Ors. v. Managing Director, A.P. Women''s Co-operative Finance Corporation Ltd. and Anr. 2009 (5) ALD 58 (SC)
10. We have considered the aforesaid contentions. The principle question that falls for consideration, therefore, is whether the precondition 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.
11. 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.
12. Section 7 of the A.P. Act 2 of 1994 prohibited regularization 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 u/s 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.
13. 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.
14. Similarly, with regard to the Part-time employees, the State Government issued G.O.(P) No. 112, Finance a 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 a Planning (FW.PC.III) Department, dated 22.04.1994 will not be reopened for giving effect to the present order.
15. 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 a 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 a Planning (FW.PC.III) Department, dated the 23rd July, 1997.
16. 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 a Planning (FW.PC.III) Department, dated the 22nd April 1994.
17. 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 a 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 a Planning (FW.PC.III) Department, dated 22.04.1994, and G.O.(P) No. 112, Finance a 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 a Planning (FW.PC.III) Department, dated 23.07.1997, failing which, Section 7 of the A.P. Act 2 of 1994 would operate.
18. 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.
19. 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.
20. 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 G.O.Ms. No. 166, Education Department, dated 08.06.1994 shall apply mutatis - mutandis to the Junior Lecturers (Vocational) working in Government Junior Colleges, subject to the following conditions:
I. They should have put in 5 years of service by 25.11.1993;
II. They should have 16 hours of workload in a week;
III. They should be working in a regular vacancy;
IV. They should possess prescribed qualification for the post of Junior Lecturer (Vocational Course); and
V. To extend the minimum pay of the pay scale to the posts.
7. The Director of Intermediate Education is directed to take immediate necessary action to effect the payment of salary calculated at the minimum of the pay scale as stipulated in paras 4 and 5 of these orders.
8. The Director of Intermediate Education is also directed to submit proposals for regularisation of Part-Time Junior Lecturers working in Government Degree/Junior Colleges who satisfy all the above conditions, as per the orders in Para-6 above.
21. One of the principle contentions raised by the learned Counsel for the petitioners relates to the interpretation of G.O.Ms. 166, Education (CE.1) Department, dated 08.06.1994 and G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994. It was contended that the grant of minimum time scale of pay is different from regularisation of services of such Part-time employees and that in the said G.O.s, separate paragraphs deals with the said separate aspects. According to the learned Counsel, the conditions required to be fulfilled for regularisation, need not be fulfilled for claiming minimum scale of pay.
22. Reliance is placed in support of the said contention on para 9 of G.O.Ms. 166, Education (CE.1) Department, dated 08.06.1994, as well as para 4 of G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994. Relevant paragraphs are already quoted as above. It is, however, to be noted that the said G.O.s were issued in the light of G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, dealing with the regularisation, absorption of daily wage and NMR etc., employees. The scheme formulated by the Government under the said G.O., which is given under reference 7 in G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994, refers to the condition that services of such Part-time Lecturers who qualify on the cut off date of 25.11.1993 were sought to be given relief. If the said contention of satisfying the requirements with reference to the cut-off date are ignored by accepting the contentions of learned Counsel for the petitioners, it would mean that, notwithstanding the prohibition contained in A.P. Act 2 of 1994, such of the employees, who are continuing contrary to the prohibitary clauses under the A.P. Act 2 of 1994, would continue to claim the minimum time scale of pay.
23. Even otherwise, it is not in controversy that G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994 applies with reference to the Part-time lecturers in Government Degree and Junior Colleges and is not applicable for the Junior Lecturers in Vocational Government Junior Colleges. The scheme under G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994, was adopted by the Government with reference to the Vocational Government Junior Colleges by issuing G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994. Para 4 of the said later G.O. refers to the basic scheme under G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, as well as G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994. The said para 4 in G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994 is, therefore, merely descriptive and states like a Preamble, as to what is provided in G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994. The actual decision of the Government with regard to the Part-time lecturers in Vocational Government Junior Colleges is contained in para 6 of G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994, which is referred to above.
24. It is specifically mentioned in the said para that while the Government decided to adopt the same scheme in G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994, while applying the same to the Part-time Lecturers in Vocational Government Junior Colleges, the adoption of the said G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994 was ''subject to the following conditions", namely, (i) They should have put in 5 years of service by 25.11.1993; (ii) They should have 16 hours of workload in a week; (iii) They should be working in a regular vacancy; (iv) They should possess prescribed qualification for the post of Junior Lecturer (Vocational Course). The aforesaid conditions are therefore to be read in addition to the requirements under G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994. If the contention of the learned Counsel for the petitioners is accepted, the decision of the Government under the said para 6 applying the scheme of G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994 to the petitioners would not satisfy the later part of para 6, which stipulated that ''subject to the following conditions''.
25. Paragraphs 7 and 8 of the said G.O. consequentially give a direction to the Director of Intermediate Education to take action for payment of salary calculated at the minimum of pay scale, as stipulated in paras 4 and 5 of the said G.O. Thus, para 4 only/stipulates the pay scales for the categories of Part-time Lecturers, as is given in para 9 of G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994. The conditions precedent for grant of such pay scales are provided only in para 6 of the said G.O.
26. Therefore, the direction in para 8 of the G.O. to the Director of Intermediate Education is to process the cases of such Part-time Junior Lecturers, who satisfy the conditions as per para 6 of the said G.O. A conjoint reading of the said G.O.s would therefore, clearly postulates that, while the individual cases are examined for regularisation of Part-time Junior Lecturers, immediate action is to be taken to effect payment of salary calculated at minimum scale of pay, as stipulated in para 4 of the said G.O. The direction of the said G.0.S, to our mind, as above, can only be harmonious with the intention of the Government, as reflected in G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, G.O.Ms. No. 166, Education (CE.1) Department, dated 08.06.1994 and G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994.
27. It is also contended that, for claiming minimum time scale, it is not necessary that such Part-time Lecturers must satisfy the preconditions relating to regularisation also and thereby, it is contended that, if the self-same conditions required for regularisation are to be fulfilled, the Lecturers would get entitlement for regularisation itself. In other words, the contention of the learned Counsel for the petitioners is that irrespective of the petitioner satisfying the criteria for regularisation, they should be held entitled for minimum time scale of pay. For appreciating the above contention, it is necessary to notice the pre-conditions for regularisation, as set out in G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994.
28. A look at the pre-conditions stipulated in G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, G.O. (P) No. 112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997 and the present G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994 would show that the crucial cut-off date i.e. 25.11.1993 is common in all the three G.O.s. Further, the past service and continuation of such persons on the said cutoff date is also essential. Thus, firstly the scheme under G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994, is in accordance with the scheme of G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994. The rest of the conditions are not same as of either G.O.Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994 or G.O.(P) No. 112, Finance a Planning (FW.PC.III) Department, dated 23.07.1997 as above.
29. Therefore, it is clearly evident that unless a Part-time Lecturer satisfies the requirements of basic condition of fulfilling the requisite criteria as on the cut-off date i.e. 25.11.1993, no benefits can be claimed by him. Inasmuch as any other appointee, who falls outside the said scheme of the three G.O.s, referred to/above, he would be violating the provisions of the A.P. Act 2 of 1994. We cannot, therefore, accept the aforesaid contention of the learned Counsel for the petitioners.
30. In
As appointments had been made dehors the Rules and without following the procedures known in law and in flagrant violation of the constitutional scheme as laid down in Articles 14 and 16 of the Constitution, the appointments although might have been made in exigencies of services, they must be held to be wholly illegal and without jurisdiction.... The availability of funds is not and cannot be a valid ground to make the appointments of persons without proper sanction and creation of posts and cannot be taken to be an excuse to perpetuate illegalities.
31. Even in A. Manjula Bhashini (1 supra), the Supreme Court held in para 39 as follows.
...Undisputedly, the Ordinance issued in 1993 was the first exercise of legislative power by the State to prohibit employment on daily wages and to restrict appointments on temporary basis and, at the same time, streamline the recruitment in public services by adopting a procedure consistent with the doctrine of equality embodied in Articles 14 and 16 of the Constitution. The 1994 Act was enforced with effect from 25.11.1993, i.e. the date on which the Ordinance was published in the Official Gazette. Therefore, that date had direct bearing on the policy of regularisation circulated vide G.O. dated 22.4.1994, which was issued by the State Government in exercise of its executive power under Article 162 of the Constitution. When that policy was engrafted in the 1994 Act in the form of proviso to Section 7, the Legislature could not have fixed any date other than 25.11.1993 for determining the eligibility of daily wage employees who fulfilled the requirement of 5 years continuous service. If any other date had been fixed for counting 5 years service of daily wage employees for the purpose of proviso to Section 7, the object sought to be achieved by enacting the 1994 Act would have been defeated, inasmuch as the regular recruitment could not have been made for appointment against the sanctioned posts and back door entrants would have occupied all the posts. Therefore, the cut off date i.e. 25.11.1993 prescribed by the Legislature for determining the eligibility of daily wage employees and others covered by Section 7 of the 1994 Act cannot be dubbed as arbitrary, unreasonable, irrational or discriminatory.
32. Thus, the benefit of minimum scale of pay to the petitioners without the petitioners fulfilling the requirements of the schemes issued in conformity with A.P. Act 2 of 1994 would defeat the mischief sought to be arrested by A.P. Act 2 of 1994.
33. It has not been disputed by the learned Counsel for the petitioners that almost all the petitioners received the benefit of minimum scale of pay, which was not in conformity with the aforesaid schemes. The Commissioner of Intermediate Education, therefore, issued show cause notices to each of the petitioners, pointing out the irregular grant of minimum scale of pay and the petitioners were called upon to show cause as to why the benefit should not be cancelled or withdrawn by recovering the grant of the said irregular benefit. Such notices said to have been issued to about 900 Junior Vocational Lecturers. Individual Lecturers filed their representations before the Government and the entire issue was reviewed by the Government, in consultation with the Commissioner of Intermediate Education in the light of various Government Orders on that subject. On due consideration, Government issued G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.07.2006. The said G.O. relaxed certain conditions relating to requisite educational qualifications and with reference to the conditions under G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994 referred to above, further clarifications were issued. Para 3 of G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.07.2006 is relevant for our purpose and is extracted hereunder.
3] In regard to service matters, it is hereby clarified that for the purpose of G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994.
1. That the past service rendered prior to the cut-off date stipulated in the said G.O. by the Vocational Staff shall be considered only if they were paid remuneration from the Government funds/CSS funds.
2. That the past service rendered on honorary basis/voluntary basis shall not considered for regularisation of services/grant of minimum of the time scale.
3. That persons who were not in service as Vocational Junior Lecturer as on 25.11.1993 cannot be considered either for regularisation or for Minimum Time Scale of pay under the provision of G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994. In respect of those who are in service as on 25.11.1993 and have satisfied the conditions prescribed in G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994 for Minimum Time Scale or regularisation only need to be continued in the present status. For the purpose of calculation of 3 years/5 years of service mentioned in G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994, the service rendered in the Government, either in Vocational Junior College or in the Junior Vocational Stream in it is/ZP High School shall be taken into account as qualifying service.
4. That the services of those Vocational Staff who worked for five academic years with 600 working days continuously or with breaks prior to 25.11.1993 in one or more Government Junior Colleges/Schools (Government/ZPHS) in the same subject and was in Government service as on 25.11.1993 shall be regularised, subject to the condition that they were paid remuneration from Government funds.
5. That the Vocational Staff, who are engaged after 25.11.1993 up to the year 2000-2001 can opt to continue either as Contract Faculty or as Part Time Junior Lecturers.
However, the Vocational Staff who are engaged after the academic year 2000-2001 should be continued as Contract Faculty only, if they are otherwise qualified to hold the post.
6. That the service certificates issued by the authorities stating that the remuneration was paid out of CDC funds/Management Funds/Special fee funds shall not be considered for grant of minimum of the time scale/regularisation of services.
7. That the service rendered by a candidate in two different Vocational Courses or in Vocational and General Stream can be clubbed for the purpose of Minimum Time Scale/Regularisation provided they were paid from out of Government/CSS funds.
33. The said G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.07.2006 is, therefore, clarificatory in nature and relaxed condition thereof, further reiterates that minimum time scale of pay is to be granted only to such of the Vocational Junior Part-time Lecturers, who fulfil at least the aforesaid para 3 of G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.07.2006.
34. In the present batch of cases, the Tribunal has found in paragraph 11 of the impugned order that while the petitioners do not satisfy the requirements of G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994, referred to above, they also do not satisfy even the relaxed conditions under G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.07.2006 referred to above.
35. It is in those circumstances, that the Government, after noticing wholesale irregularities in the sanction of minimum time scale of pay, got verification of records from all colleges and after due verification, had given show-cause notices to the petitioners. After taking into consideration the explanation furnished, the impugned orders of withdrawal of the said scale of pay were passed against the petitioners. The Tribunal, therefore, has rightly held that the principles of natural justice have been fulfilled in all these cases, and the impugned orders before the Tribunal cannot be faulted on the said ground.
36. Therefore, the Division Bench of this Court in Writ Petition No. 27668 of 2007 dated 02.04.2008, has correctly applied the criteria envisaged under G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994, and has upheld the order of the Tribunal impugned herein.
37. Since we have also came to the same conclusion and since we have answered the issues holding that the aspect of fulfilment of criteria under para 6 of the G.O.Ms. No. 352, Education (IE.1) Department, dated 01.10.1994 and para 3 of G.O.Ms. No. 101, Higher Education (IE.1) Department, dated 29.7.2006 have not been fulfilled by the petitioners, they are not entitled to any sort of relief.
38. During the hearing of the case, it is brought to our notice that a large number of such Part-time Vocational Lecturers are continued in the Government, though they cannot be regularised, as they do not fulfil the requirements of the policy referred to above. However, the work load, which is being discharged by them, obviously shows that there may be a large number of vacancies which are not being filled up by the Government taking up regular recruitment. The action of the State in keeping the vacancies unfilled and getting the work through the Part-time employees not only effects such employees themselves as they have no security of tenure, but also the general public interest, whereby, vacancies are continued as such, without taking any steps to fill the same in accordance with law. The failure of the State to act in the said manner has led to the present situation, where, after working for long years and having advanced in age, now, these Part-time employees have no security of the tenure. Since the vacancies cannot be continued indefinitely without taking up steps to fill up the vacancies by a regular recruitment process, we direct the State-1st respondent herein to forthwith take necessary steps by identifying the vacancies and take up a regular recruitment therefore in accordance with law. Many of the part-time lecturers who are now working in those vacancies may also be fulfilling all other eligibility requirements except perhaps the age requirement and to that extent the State-first respondent may suitably consider grant of age relaxation to such of the existing qualified part-time lecturers.
39. We, therefore, direct the Government to review the entire situation, identify the vacancies and take prompt steps to fill the same by regularly selected candidates, so that the students at large do not suffer, and at the same time public interest is advanced.
40. The State-1st respondent shall comply with the aforesaid directions and file compliance report by or before the end of June, 2010. The matters be listed in the first week of July, 2010 under the caption "for orders as to compliance".
41. Consequently, subject to these observations, all the writ petitions are liable to be dismissed and are accordingly dismissed. However, there shall be no order as to costs.
