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2001 DIGILAW 118 (AP)

Executive Officer, tirumala TIRUPATI DEVASTHANAM v. A. Vasudevaiah

2001-02-08

S.B.SINHA, S.R.NAYAK

body2001
S. B. SINHA, C. J. ( 1 ) THIS appeal is directed against a judgment and order dated 22-2-1999 passed by a learned Single Judge of this Court in w. P. No;14784 of 1993 whereby and whereunder the writ petition filed by the respondent herein was allowed. ( 2 ) THE basic fact of the matter is not in dispute. The respondent was appointed as an Instructor (Welder) in an institution known as S. V. Training-cum-Production centre for TTD, Tirupati. He joined duty on 28-3-1993. ( 3 ) THE said institution is an educational institution is not in dispute. It is also not in dispute that the aforementioned educational institution is affiliated with director General of Employment and training (DEGT, for short), which is a department of the Government. ( 4 ) THE interpretation of the proviso appended to Rule 9 (i) of the T. T. D. Employees Service Rules, 1999 (hereinafter referred to as the Rules for brevity) framed by the State of Andhra Pradesh in exercise of the power conferred upon it under A. P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as the Act for brevity), fell for consideration before the learned Single judge. Having regard to the phraseology used therein, it was held that the respondent herein was entitled to the same scale of pay which is payable to the employees similarly situated of that university or such Government as the case may be. ( 5 ) THE learned Counsel appearing on behalf of the Appellant herein, inter alia, submits that the learned Single Judge erred in fixing the scale of pay of the respondent with retrospective effect. The learned counsel would urge that the services of the respondent cannot be treated at par with the Government employees. It was submitted that a Pay Commission was appointed to look into the matter and the recommendations of the said Pay commission having been accepted, the learned Single Judge must be held to have erred in passing the impugned judgment. ( 6 ) RULE 9 (i) of the Rules reads:"9. Appointment and method of recruitment: (i) The method of recruitment for appointment, qualifications, age prescribed for various posts shall be as specified against each post annexure-II under these rules. ( 6 ) RULE 9 (i) of the Rules reads:"9. Appointment and method of recruitment: (i) The method of recruitment for appointment, qualifications, age prescribed for various posts shall be as specified against each post annexure-II under these rules. Provided that in case of teaching staff of educational institutions affiliated to any of the University or any government the rules of such university or such Government as the casa may be in respect of qualifications, age, method of recruitment, pay and allowances, vacation, leave salary, traveling allowances and age of retirement shall apply. " ( 7 ) IT is not in dispute that the aforementioned institution wherein the respondent herein is serving had at all material times been and still is serving, is an educational institutions, as indicated hereinbefore. It is also not in dispute that the said educational institution is affiliated to a department of the Government. ( 8 ) THE proviso appended to Rule 9 (i) is a beneficial provision. The same operates as an exception to the main provision. In s. Sundaram Pillai vs. V. R. Pattabiraman it has been held that a proviso may serve four different purposes viz. , (1) Qualifying or excepting certain provisions from the main enactment; (2) It may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (3) It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself;and (4) It may be used merely to act as an additional addenda to the enactment that the sole object of corresponding real intendment of the statutory provision. ( 9 ) HAVING regard to the aforementioned authoritative pronouncement of the Apex court, the proviso appended to Rule 9 (i) would operate as an exception to the main provision, as thereby certain benefits have been conferred upon the employee. It is required to be construed liberally. ( 10 ) WE are not oblivious of the fact that the respondent herein cannot ask this Court to apply the doctrine of equal pay for equal work as adumbrated in Art. 39 (d) of the constitution of India. It is required to be construed liberally. ( 10 ) WE are not oblivious of the fact that the respondent herein cannot ask this Court to apply the doctrine of equal pay for equal work as adumbrated in Art. 39 (d) of the constitution of India. We are not also oblivious of the fact that the doctrine of equal pay for equal work is conceptually different from claim of parity with others . ( 11 ) IN Kshetriya Kisan Gramin Bank vs. D. B. Sharma, the Apex Court has held that the Pay Commission being an expert body would be the best Judge to evaluate the nature of the duties and responsibilities of the posts. But there cannot also be any doubt whatsoever that where the conditions of service of an employee are governed by a statute or statutory rule, the same must be fully given effect to. Payment of salary and allowances to an employee amounts to right of property within the meaning of art. 300-A of the Constitution of India. , The state in exercise of its statutory power, having conferred a statutory right upon the respondent herein to have the same salary and allowances which is payable to the employees of a University or Government if the institution is affiliated thereto, we see no reason as to why" the respondent herein shall be deprived therefrom. ( 12 ) IN this view of the matter, we are also, having regard to the decision of the apex Court in M. R. Gupta vs. Union of india, of the opinion that Limitation Act, 1963 being not applicable to a proceeding under Art. 226 of the Constitution of India, the learned Single Judge has not committed any error in passing the impugned judgment. There is no merit in the writ appeal and it is accordingly dismissed. In the facts and circumstances of this case, there shall be no order as to costs. ( 13 ) THE respondent herein filed Cross-Objections to the effect that he is entitled to the scale of pay from the date of his appointment. We cannot accede to the said contention having regard to the phraseology used in the proviso appended to Rule 9 (i) of the Rules as the right in the respondent accrues only from the date of affiliation and not prior thereto. The cross-Objections also accordingly stand dismissed.