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Andhra High Court · body

2012 DIGILAW 849 (AP)

Y. Kanaka Durga v. A. P. Tribal Welfare Residential Educational Institutions Society, Hyderabad rep. by its Member Secretary

2012-09-12

NOOTY RAMAMOHANA RAO

body2012
Judgment The writ petitioner, who is a staff nurse working with the Andhra Pradesh Tribal Welfare Residential Educational Institutions Society, the 1st respondent herein, is aggrieved that the 2nd respondent Principal, Andhra Pradesh Tribal Welfare Residential School, Utnoor, Adilabad District is not claiming all the allowances payable to her each month in spite of her being deputed to work at Srisailam in Kurnool District. The writ petitioner was working at Utnoor in Adilabad District. For a variety of reasons, Utnoor in Adilabad District is considered to be a very unattractive place, as it is lying in an agency area in Adilabad District and the living conditions there are perceived by many as difficult and hence, for the employees working at Utnoor, special allowances are paid. One of the allowances is called as ‘bad climate allowance’. So long as the petitioner was working as a staff nurse with the school at Utnoor, there was never any problem for her in getting paid those allowances, but however, when the petitioner participated in the counselling process undertaken by the Society between 4th and 8th July 2009, before general transfers of teaching and non-teaching staff working therein, the 1st respondent society has realized that though she sought for transfer from Utnoor to Warangal District, by an order passed on 04.08.2009, it has transferred and posted the writ petitioner to the School of Excellence run by it at Srisailam, on deputation basis, inasmuch as her husband Sri K. Sai Kishore, a Post-graduate teacher has been picked up for being transferred and posted to the School of Excellence at Srisailam instead of being posted at Warangal as desired by him. While transferring the writ petitioner on deputation basis to Srisailam on 04.08.2009, the 1st respondent requested the 2nd respondent Principal of the School at Utnoor not only to relieve the writ petitioner from service of the said school but also to continue to make arrangements for drawing her salary and allowances every month until further orders. Consequently, the petitioner has been relieved of her duties at Utnoor on 12.08.2009 and she proceeded and joined the School of Excellence at Srisailam in Kurnool District. Thereafter, each month, the Principal of the school at Utnoor was drawing her salary and transmitting it for disbursement at Srisailam. Consequently, the petitioner has been relieved of her duties at Utnoor on 12.08.2009 and she proceeded and joined the School of Excellence at Srisailam in Kurnool District. Thereafter, each month, the Principal of the school at Utnoor was drawing her salary and transmitting it for disbursement at Srisailam. However, the petitioner has noticed that the said Principal has not been drawing some of the allowances, which she was receiving while she was serving at Utnoor. Consequently, as against the total quantity of salary and allowances received by her when she worked at Utnoor, she was drawing less amount at Srisailam. In fact, the petitioner has obtained the necessary information under the provisions of the Right to Information Act, 2005 and demonstrated that for the month of June 2009, she was paid Rs.21,914/-at Utnoor and for the month of July 2009, she was paid Rs.21,495/-, and subsequent to her joining at Srisailam in Kurnool District, for the months of September and October 2009, she was only credited with a sum of Rs.20,689/-and Rs.20,320/-respectively. Thus, she was getting paid less amount than what she was drawing at Utnoor. Hence, she instituted the present Writ Petition. There is no dispute that the writ petitioner has been transferred to the School of Excellence at Srisailam in Kurnool District while she was working at Utnoor in Adilabad District. She has already completed six years of service at Utnoor in Adilabad District. Consequently, she would have been considered by the 1st respondent Society for being transferred and posted to a place of her choice. Though her husband has preferred to be transferred from Utnoor to Warangal District, but however, he is one such teacher, who has been picked up for being posted to the School of Excellence at Srisailam in Kurnool District. Therefore, along with the post of a post graduate teacher, the husband of the petitioner has been transferred and posted to Srisailam in Kurnool District instead of being posted at Warangal. Therefore, along with the post of a post graduate teacher, the husband of the petitioner has been transferred and posted to Srisailam in Kurnool District instead of being posted at Warangal. The 1st respondent Society therefore, felt obliged to keep the wife and the husband at one place and hence, issued the orders of transfer to the petitioner on 04.08.2009, deputing her to work at Srisailam, Kurnool District, but the grievance of the petitioner is that though her salary and allowances are counted against the post of staff nurse at Utnoor in Adilabad District, the entire amount payable to a staff nurse of the said school is not paid to her, while she was working at the School of Excellence, Srisailam in Kurnool District. Learned counsel for the petitioner has drawn my attention to F.R.44, which has since been adopted by the 1st respondent society. The subsidiary rule No.2 framed by the State Government under F.R. 44 clearly stipulated as under: “A compensatory allowance attached to a post will be drawn in full by a government servant performing the duties of the post.” What the above subsidiary rule has stated is more explicit. Every servant, who discharges the responsibilities and functions attached to a post, will be paid salary and allowances attached to the said post. But however, if one is not performing any such duties and responsibilities attached to the said post, such a person is not legally entitled to seek payment of all such allowances attached to the said post. In the instant case, so long as the writ petitioner was working as a staff nurse attached to the school at Utnoor in Adilabad District, there is no dispute that she was drawn and paid all the allowances attached to the said post, but however, she is presently working at a far away school at Srisailam in Kurnool District. The post of staff nurse attached to the School of Excellence at Srisailam in Kurnool District is not liable to be paid all such allowances which the post of a staff nurse attached to the school at Utnoor is liable to be paid. In other words, there are certain specific allowances which become payable for holding the post of staff nurse at Utnoor and they are not available to be paid for a staff nurse working at Srisailam. In other words, there are certain specific allowances which become payable for holding the post of staff nurse at Utnoor and they are not available to be paid for a staff nurse working at Srisailam. Though the petitioner has been transferred on deputation basis by the 1st respondent, the same was affected in view of a government policy followed by it, namely keeping both the spouses at one place as far as it is feasible. The 1st respondent runs and manages schools, which are essentially residential educational institutions. The children, who get admitted to those schools are all essentially of tender age and most of the schools run and managed by the 1st respondent are located at fairly remote, rural or semi-urban areas. The medical aid may not be forthcoming and available at such places. Since a large number of tender age children are confined to hostels, far removed from their homes, there should be a qualified caretaker of their health available on campus. Such a measure would not only help in preventing the spread of diseases, but would also help in attending to any of the sick children before proper medical aid reaches them. To achieve these objectives, a staff nurse is also associated with every such school. Utnoor being an unattractive place and located in a difficult terrain of an agency area, the post of staff nurse there has been sanctioned certain additional allowances as a measure of incentive for one to go and join and serve there. However, the petitioner is not physically performing the duties and responsibilities of a staff nurse attached to Utnoor school after she was relieved there on 12.08.2009 and she joined at Srisailam. Correspondingly, the post of staff nurse at School of Excellence at Srisailam is not enjoying payment of such special allowances. Therefore, the petitioner could not have made a legitimate grievance out of nonpayment of such special allowances, which she was otherwise drawing while she was serving at Utnoor. The learned counsel for the petitioner has pointed out that other teachers, who have been deputed from the school at Utnoor or any other school located in agency area, are being paid the salary together with the allowances, which they were drawing at Utnoor, but only in the case of the petitioner, she was discriminated from being paid the said salary and allowances. In the exigencies of service, if the 1st respondent society has truly deputed one of its servants to another place, the incumbent individual cannot be put to sufferance. In such cases, perhaps, payment of the allowances attached to the post from where he/she was deputed could be justified. Non-application of the same principle in the case of the petitioner cannot become a point for discrimination. It is no doubt true that the petitioner is treated as to have been deputed from Utnoor to Srisailam. Such a deputation is not on account of the imminent necessity of utilizing her services at Srisailam, but arising from out of a policy of keeping both the spouses together at one place. Keeping both the spouses at one place will prevent one or both of them from undertaking travel frequently. Further, since residential schools will be better served if the teaching and non-teaching staff are not forced to leave the said institution only for taking care of their family members. I therefore, do not find any justification behind the claim of the writ petitioner in this Writ Petition. Hence, the Writ Petition is dismissed. No costs. Consequently, the miscellaneous applications, if any shall also stand dismissed.