Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 175 (AP)

A. K. Goyal v. M. Lakshmi Surya Kumari

2002-02-07

A.R.LAKSHMANAN, G.ROHINI

body2002
AR. LAKSHMANAN, J. ( 1 ) BY consent of parties appearing on both sides, all these appeals are taken up for final haring and disposed of by this common judgment. ( 2 ) THE appeals were filed by the Secretary to Government Higher Education Department, Government of Andhra Pradesh and others. ( 3 ) IN all these Contempt Appeals, the Appellants are State Government and the official respondents in the Contempt Cases. ( 4 ) THE Appeals arise out of a batch of contempt cases bearing No. 858 of 1997 and batch filed by individual petitioners, hereinafter referred to as the petitioners who are working in different colleges in the State. ( 5 ) THE petitioners filed Writ Petitions substantially claiming a similar relief by all of them. They wanted that for the purposes of Career Advancement Scheme, the service rendered by them in the unaided post should be computed to the service they have rendered in the aided post. In the career Advancement Scheme as ordained in G. O. Ms. No. 169 dated 7. 7. 1990, all the lecturers who have completed 8 years of service in a particular pay scale will be entitled to a senior scale of Rs. 3000-5000, Similarly such of those lecturers who have completed 16 years of service will be entitled to selection grade pay scale, that is, Rs. 3700-5700. ( 6 ) THE whole controversy of the matter is as to whether the service rendered by these petitioners when the post is un-aided should be counted or not for the purpose of arriving at this 8/16 years of service. ( 7 ) ALMOST all the Writ Petitions have been disposed of by the learned single Judge with the following observations:"under these circumstances, the Writ Petition is disposed of with a direction that the petitioners shall make necessary application to the competent authority through proper channel within a period of 4 weeks from the date of receipt of a copy of this Order and on submission of such applications, the authorities shall consider the same and pass appropriate orders keeping in view the judgment of Division Bench of this court in Writ Appeal No. 932/97 dated 8. 9. 9. 1997 within a period of 6 weeks thereafter" ( 8 ) IN Writ Appeal No. 932 of 1997 referred to by the learned single Judge, an order passed in the Writ Petition No. 8176 of 1997 dated 19/02/1997 has been confirmed. The learned Judge in that case pointed out that nowhere in the G. Os relating to Career Advancement Scheme it is stated that un-aided service has to be excluded and on that premise gave a direction in favour of the Writ Petitioner in that case to compute the service of the petitioner rendered in un-aided post and to pass appropriate orders. ( 9 ) AFTER these proceedings, the State Government issued Ordinance No. 9 of 1999 which was followed by A. P. Act 9 of 1999. Under these legislative enactments, which were given retrospective effect, i. e. , with effect from 10. 1. 1980, nobody s unaided service could be counted for the purposes of any scheme formulated for pay scales or for Career Advancement Scheme. On the basis of this Ordinance, which was followed by the Act, all the petitioners were issued proceedings by the authorities concerned rejecting their claim for computation of unaided service along with aided service. These orders were passed on consideration of the matter as directed by the learned single Judge. ( 10 ) COMPLAINING that such orders of rejection of the claims of the petitioners were issued in violation of the orders passed in their respective Writ Petitions, the contempt cases were filed. ( 11 ) THE learned single Judge passed the impugned orders dated 8. 11. 1999 in those contempt cases. The learned Judge while accepting the plea that the State has power to enact law retrospectively and can remove the defect pointed out by the court in the previous law by bringing appropriate changes in law, held on interpretation of Clauses in the Ordinance that the Ordinance did not cover Career Advancement Scheme. ( 12 ) ON such a construction and interpretation of the Ordinance, the learned single Judge in the contempt cases gave direction that the appellants should implement the orders passed in the Writ Petitions within a period of 3 months. ( 12 ) ON such a construction and interpretation of the Ordinance, the learned single Judge in the contempt cases gave direction that the appellants should implement the orders passed in the Writ Petitions within a period of 3 months. ( 13 ) WE may now refer to some of the observations made by the learned single Judge in the judgment which is impugned in these appeals:" It is beyond pale of controversy that the legislature has power to enact the law retrospectively provided it has competence over the subject mater. It can also remove the defect pointed out by the court in the previous law by bringing appropriate changes in law provided it is not inconsistent with the provisions of the Chapter III of the Constitution. Section 2 is a qualifying and enacting section. It only stipulates that service from the date of the approval of the appointment in a post admitted to grant-in-aid shall be counted, for the purpose of fixation of his pay and also the pension under the schemes formulated. So, Section 2 applies to fixation of pay and also the pension under the schemes formulated, but it did not refer to the automatic advancement/career advancement scheme. To validate the eligibility criteria retrospectively, and to over ride the benefits already released or to make ineffective the judgments and decrees of the courts or administrative orders non-abstante clause was enacted in Section 3. " ( 14 ) WHEN once Section 2 did not cover the automatic advancement scheme/career advancement scheme, the criteria under Section 2 cannot be made applicable. Consequently, Section 3 cannot embrace the automatic advancement scheme and it shall be deemed that the Ordinance was confined only to pay fixation and pension. Even though Section 3 refers to the automatic advancement scheme it has to be ignored as Section 2, the principal criteria laying section did not include these schemes. As already observed the scope of enacting section cannot be curtailed or widened by the non-abstante Clause, what was not added in the enacting section, cannot be provided by the non-abstante clause. Even though Section 3 refers to the automatic advancement scheme it has to be ignored as Section 2, the principal criteria laying section did not include these schemes. As already observed the scope of enacting section cannot be curtailed or widened by the non-abstante Clause, what was not added in the enacting section, cannot be provided by the non-abstante clause. Therefore, it has to be necessarily held that Ordinance is not applicable to the automatic advancement scheme" ( 15 ) THE learned Government Pleader for Higher Education, appearing on behalf of the appellants in the Contempt Appeals, vehemently contends that the learned single Judge in the Writ petitions issued a direction to consider the representations submitted by the petitioners and accordingly, the same were considered and rejected in view of the Ordinance No. 9 of 99 followed by the Act 9 of 1999, under which un-aided service cannot be counted along with aided service for the purposes of Career Advancement Scheme. It is further contended that the basis on which earlier Writ Petition i. e. , W. P. No. 8176 of 1997 was disposed of, namely, that there was no provision for exclusion of un-aided service, is now rectified. ( 16 ) IT is well settled law that Legislature can amend a law, or introduce a law retrospectively to remove the defects pointed by the Courts in the previous law. ( vide Sri Pridhvi Cotton Mills Ltd. Vs. Broach Bourgh Municipality, AIR 1970 SC 192 ; State of Gujarat Vs. Ramanlal Kesavlal Sons, (1983) 2 SCC 33 , Indian Aluminium Co. Vs. State of Kerala, (1996)7 SCC 637 ) ( 17 ) IT is also well settled proposition of law that when there is a direction to consider the matter and accordingly the matter has been considered, no further action in Contempt lies, unless it is demonstrated that the consideration was effected in a manner to whittle down the claims of the petitioner. ( See Chhottu Ram Vs. Urvashi Gulati and Anr. , (2001)7 SCC 530 ; T. V. Chowdary Vs. M/s Riata Industrial Corporation Pvt. Ltd. , 1998 (2) ALT 449 ; J. S. Prabhakar Vs. Ganapat Dugga and Ors. , (1996)6 SCC 291 ; Rabiabee @ Kajabee Vs. R. Subrahmanyam and Anr. , 1997 (2) ALT 818 ). ( See Chhottu Ram Vs. Urvashi Gulati and Anr. , (2001)7 SCC 530 ; T. V. Chowdary Vs. M/s Riata Industrial Corporation Pvt. Ltd. , 1998 (2) ALT 449 ; J. S. Prabhakar Vs. Ganapat Dugga and Ors. , (1996)6 SCC 291 ; Rabiabee @ Kajabee Vs. R. Subrahmanyam and Anr. , 1997 (2) ALT 818 ). As can be seen from the records placed before us, the matter has been considered and rejected in view of the Ordinance and the Act. ( 18 ) FURTHER, it is well settled principle of law that the petitioners cannot challenge the vires of the Ordinance, which is followed by the Act in Contempt Proceedings. It is also well known proposition of law that there can be no adjudication in Contempt proceedings. It has to be noted in this context that in the instant case the petitioners did not challenge the vires of the Ordinance or the Act nor is there any pleading to the effect that the Ordinance is not applicable to the Career Advancement Scheme. ( 19 ) AS rightly pointed out by the learned Government Pleader, it is also expedient to note in this context the subsequent event that had taken place. Pending the above appeals in this Court, the State Legislature had passed a Bill bearing L. A. Bill No. 48/2001. It is awaiting assent of His Excellency, the Governor. This Bill sought to amend the above Act 9 of 1999 stating "it shall be deemed to have come into force on and from 25. 4. 2000 instead of 10. 1. 1980 as stipulated in the earlier Ordinance". We are, therefore, of the view that the petitioners have to work out their rights under this proposed Amendment which gives right to the respondents. ( 20 ) HAVING regard to the facts and circumstances of the case and for the foregoing reasons, we set aside the impugned common order passed by the learned single judge. All the Contempt Appeals are disposed of accordingly.