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Andhra High Court · body

2014 DIGILAW 130 (AP)

S. Chaitharanjan v. Government of A. P.

2014-01-30

DAMA SESHADRI NAIDU

body2014
Judgment The petitioners, 17 in number, filed the present Writ Petition questioning the Memo, dated 30.01.2009 issued by the first respondent, recalling the earlier Memo, dt. 16.12.2008, whereby and whereunder the said authority ratified the action of the Collector and Chairman of D.R.D.A, in extending the benefit of time scale to the petitioners. The facts in brief are that the first petitioner is working as Tracer; 2nd petitioner, as a Typist; Petitioners No.3 to 11, as Attendars; and petitioners 12 to 17, as drivers, in the 4th respondent Organization. On their appointment in the respective posts, the petitioners have been working in Drought Prone Area Programme, Ananthapur District, since inception. As the petitioners were working on daily wages, despite numerous representations made by them, when they were not extended the benefit of time scale, the petitioners filed W.P.No.16787 of 1999. In a miscellaneous petition - W.P.M.P.No.20847 of 1999 in the said writ petition - this Court passed an interim order directing the respondents to continue the petitioners in service and pay them the salary in the time scale of pay attached to the said post. In the light of the said direction of this Court, in course of time, the petitioners withdrew the said Writ Petition. Ostensibly, in anticipation of compliance with the directions of this Court by the authorities, the petitioners seem to have withdrawn the Writ Petition, which came to be dismissed as withdrawn on 07.10.2004. The respondents, however, implemented the said interim direction of this Court only in part, having continued the petitioners in service without extending the time scale. Later, the petitioners came to know that certain other similarly placed employees working in Cuddapah District were given the benefit of time scale through Proceedings dt. 27.06.2003 of the Collector and Chairman of D.R.D.A. As a result, the petitioners as well renewed their representations to the authorities seeking the same benefit of time scale. The Collector and Chairman, in turn, brought the issue to the notice of the Secretary concerned at the Government level. On further correspondence, the Commissioner, Rural Development, was requested by the Government to inform the Project Director, D.W.M.A, Ananthapur to place the issue before the Governing Body for taking an appropriate action at their level for extending the benefit of minimum scale of pay. On further correspondence, the Commissioner, Rural Development, was requested by the Government to inform the Project Director, D.W.M.A, Ananthapur to place the issue before the Governing Body for taking an appropriate action at their level for extending the benefit of minimum scale of pay. The Commissioner, Rural Development, on his part, addressed a letter in August, 2006 to the Project Director, D.W.M.A, to take necessary action in this regard. Eventually, after some time, i.e., after passing through different stages of consideration, the proposal of the District Collector and Chairman was approved by the Governing Body in its meeting held on 16.05.2008. Thus, having taken a decision to extend the time scale to the petitioners with effect from 01.06.2008, the District Collector once again addressed a letter dated 07.09.2008, seeking permission from the Commissioner, Rural Development, to implement the resolution of the Governing Body. After relentless efforts of the petitioners, the issue having undergone scrutiny at several stages, the Department of Panchayat Raj and Rural Development, Government of Andhra Pradesh, issued a Memo dated 16.12.2008, accepting the proposal and further directed the District Collector to extend the minimum time scale to the 19 daily wage employees, but not to regularize their services. Accordingly, the petitioners were paid time scales attached to their respective posts, and they were also paid arrears thereof. When the petitioners felt that the issue of their wages had been given quietus, surprisingly, the first respondent issued a Memo, dated 30.01.2009, holding that its earlier Communication dated 16.12.2008 was not properly interpreted and that extending the benefit of time scale to the petitioners would be in violation of Act 2 of 1994 r/w G.O.Ms.No.212 (Finance and Planning) Department, dated 22.04.1994. Aggrieved thereby, the petitioners approached this Court by filing the present Writ Petition. The learned counsel for the petitioners has contended that the petitioners have been working since 1994 in the sanctioned posts. Even in the earlier Writ Petition filed by the petitioners, this Court gave a categoric direction in the miscellaneous petition that their services should be continued and that they should be given the benefit of time scale. Subsequently, it has come to the knowledge of the petitioners that many other daily wage employees working in other Districts have been extended the benefit by the same respondent organization. Subsequently, it has come to the knowledge of the petitioners that many other daily wage employees working in other Districts have been extended the benefit by the same respondent organization. Accordingly, citing the instance of the employees in Cuddapah District, the petitioners have taken up the issue with the respondent authorities. To this day, the fact that other similarly placed persons in other districts were given the benefit has not been, contended the learned counsel, denied by the respondents. The learned counsel has further contended that the action of the respondents in not extending the benefit of time scale to the petitioners is grossly arbitrary and cannot be sustained. The learned counsel has also further laid stress on the fact that through Memo dated 16.12.2008, the Government has categorically directed the District Collector and Chairman to extend the benefit of time scale to 19 daily wage employees, who included the petitioners as well. In the submission of the learned counsel the action of the said District Collector and Chairman has already been ratified by the first respondent through the said Memo. Under those circumstances, even without putting the petitioners on notice, the very authority, who issued Memo dated 16.12.2008, subsequently issued another Memo dated 30.01.2009, trying to wriggle itself out of the irrevocable commitment it had made in extending the time scale to the petitioners by taking a strange plea that the Order dated 16.12.2008 was misinterpreted. Referring to the objection on the part of the said authority that extending the benefit of time scale would be in violation of the Act 2 of 1994, the learned counsel has contended that the said enactment has been silent about extending the time scale, though its speaks of prohibition against regularization of the employees under the circumstances enunciated therein. Thus, the learned counsel has urged this Court that the action of the respondents cannot be sustained and the Memo dated 16.12.2008 is required to be restored. Referring to the contents of the Counter Affidavit filed by the respondents, the learned counsel for the petitioner has stated that Memo dated 16.12.2008 admits of no misinterpretation, and as such Memo dated 13.01.2009 cannot be sustained. Referring to the contents of the Counter Affidavit filed by the respondents, the learned counsel for the petitioner has stated that Memo dated 16.12.2008 admits of no misinterpretation, and as such Memo dated 13.01.2009 cannot be sustained. According to the learned counsel, the action of the respondent authorities is to be sustained on the proceedings issued by the said authorities, but it cannot be later supported or justified by supplementary proceedings or any amount of explanation submitted in the Counter Affidavit. In this regard, the learned counsel has placed reliance on (1) Commissioner of Police, Bombay, Vs. Gordhandas Bhanji ( AIR 1952 SC 16 ) and also another Judgment of Hon’ble Supreme Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others ( AIR 1978 SC 851 ). Per contra, the learned Government Pleader has strenuously opposed the claims and contentions of the petitioners and has stated that the District Collector and Chairman does not have power to extend the time scale to the petitioners. He has also stated that it is beyond the power of even the Governing Body, which passed the resolution to implement the time scale in favour of the petitioners. In fact, the respondent authorities, along with Counter Affidavit filed in support of the Vacate Petition in W.P.M.P.No.555 of 2010, filed voluminous material with a view to justifying their action in issuing Memo dated 30th January, 2009 withdrawing the benefit of time scale given earlier through Memo dated 16.12.2008. The learned Government Pleader has further contended that the petitioners were engaged on a daily wage basis and they are not entitled to time scale, since all the posts sanctioned earlier by DWDA are temporary and required to be filled in on deputation. The Memo extending the time scale to the daily wage employees is not acceptable, apart from being impermissible in law. He has further contended that merely because the Governing Body of DWDA has taken an erroneous decision and it was sought to be implemented, the Government is not estopped from putting an end to a practice, which is not sanctioned by law. The learned Government Pleader has also further stated that while sanctioning the project, it was clearly stated that the posts were sanctioned for a period of 5 or 10 years and that they would be terminated as and when the programme was completed. The learned Government Pleader has also further stated that while sanctioning the project, it was clearly stated that the posts were sanctioned for a period of 5 or 10 years and that they would be terminated as and when the programme was completed. He has further contended that though various categories of posts have been sanctioned, the posts of watchman and sweeper have not been sanctioned. The petitioners have been drafted in, it is contended, in view of the fact that employees from other departments are not adequately available for taking their services on deputation. Thus, the petitioner have come on an ad hoc basis, but have not been working in any sanctioned posts carrying time scale. It is thus contended that the petitioners have no right to demand that they be given the time scale. The learned Government Pleader has also stated that as per Act 2 of 1994, the person who worked continuously for a minimum period of five years and continued to be in service as on 25.11.1993 be regularized by the appointing authorities subject to fulfilment of the conditions. Insofar as the petitioners are concerned, there have been working on daily wage basis since 1997 and 1998 only. As per the Act, contended the learned Government Pleader, the services of any person cannot be taken on daily wage basis from the date of issue of the orders. Accordingly, the decision taken by the Governing Body to extend the minimum time scale to the personnel taken on outsource basis after enactment of the Act is not tenable. Summing up his submissions, the learned Government Pleader has relied on the Memo dated 30.01.2009 and has stoutly defended it stating that, since extending the time scale to the petitioners would be in violation of the statutory scheme holding the field, the action of the respondents cannot be found fault with. Heard the learned counsel for the petitioners and the learned Government Pleader for the respondents, apart from perusing the record. Most of the contentions on the part of the learned Government Pleader, evidently in tune with the averments made by the respondents in their Counter Affidavit, concern themselves with the issue of regularization. Heard the learned counsel for the petitioners and the learned Government Pleader for the respondents, apart from perusing the record. Most of the contentions on the part of the learned Government Pleader, evidently in tune with the averments made by the respondents in their Counter Affidavit, concern themselves with the issue of regularization. Indeed, though the scope and amplitude of Act 2 of 1994 cannot be called in question, what remains to be seen is that the act in no express terms mandates that the daily wage employees should not be extended the benefit of time scale. Any benefit, which is to be extended, unless expressly denied, cannot be deemed to have been denied by implication. As such, to the extent that the Act 2 of 1994 comes in the way of granting the time scale to the petitioners, I am afraid, cannot be sustained. Though the respondent authorities have taken elaborate measures in their pleadings to justify the Memo dated 30.01.2009, duly backed up by voluminous material filed along with it, it however, remains to be stated that the action of the authorities once conveyed through an instrument, be it in the form of an Order or Proceedings, it shall be sustained on its own strength, but cannot be supplemented or supported by subsequent justifications supplied in the form of either supplementary proceedings or pleadings. In this regard, there is force in the contention of the learned counsel for the petitioners that if such course of action is permitted on the part of the authorities, every illegal measure of the authorities would come to be justified in course of time by supplementary proceedings or subsequent reasoning, such as post factum rectificatory proceedings or additional pleadings in the form of Counter Affidavits. This practise has been disapproved by the Hon’ble Supreme Court way back in 1952 in Commissioner of Police, Bombay (1 supra). Since the issue in the present Writ Petition hinges on the question of interpretation of the Memos that have come to be issued by the respondent authorities, it will well serve the purpose if the said Judgment of the Supreme Court is considered at length with specific reference to the facts of the matter. In Commissioner of Police, Bombay (1 supra), the respondent wanted to build a cinema hall in a part of Greater Bombay. In Commissioner of Police, Bombay (1 supra), the respondent wanted to build a cinema hall in a part of Greater Bombay. He obtained necessary permission from the Commissioner of Police, in exercise of the discretion vested in him to grant a license under Section 22 of the City of Bombay Police Act, 1902. Later, the permission was suspended by the Commissioner and the respondent was told to await the orders of the Government. Shortly after, the Commissioner sent the respondent a Communication to the effect that he was directed by the Government to inform him that the permission to erect a cinema hall granted to him earlier was thereby cancelled. In fact, under Rule 22 of City of Bombay Police Act, the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It was also clear under Rule 250 that he has been vested with an absolute discretion at any time to cancel or suspended any license which had been granted earlier. But the power to do so was vested in him and not in the State Government and could only be exercised by him at his discretion. As could be seen, the order of cancellation was not an order by the Commissioner but merely intimation by him of an order passed by another authority, namely Government of Bombay. As the only person who could effect the cancellation was the Commissioner of Police, there was no valid order of cancellation. Under those circumstances, an attempt was made by referring to the Commissioner’s affidavit to show that it was the order of cancellation made by the very Commissioner and that the order was his own order and not of the Government. Repelling the said contentions, the three judge-Bench of the Hon’ble Supreme Court held as follows: “An attempt was made by referring to the Commissioner’s affidavit to show that his was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”. Similar view was taken in the decision of Constitutional Bench of the Apex Court in Mohinder Singh Gill (2 supra), in which their Lordships have held in para 8 of the judgment: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Not to multiply the precedents, suffice it to say that as recently as in 2003, the Apex Court once again in CHANDRA SINGH AND OTHERS V. STATE OF RAJASTHAN AND ANOTHER, reported in (2003) 6 SCC 545 , reiterated the same proposition of law. In the light of the above settled legal position, now we may examine Memo dated 16.12.2008 through which the petitioners have been extended the time scale. Even the action of the District Collector and Chairman stood ratified by the first respondent. In the light of the above settled legal position, now we may examine Memo dated 16.12.2008 through which the petitioners have been extended the time scale. Even the action of the District Collector and Chairman stood ratified by the first respondent. The Memo, being cryptic, is as follows: “The attention of the Commissioner, Rural Development, A.P. Hyderabad, is invited to the reference cited and she is informed that Government have examined the proposal to extend time scale to the 19 daily wage employees working in District Water Management Agency, Anantapur, and decided to ratify the action of the Collector and Chairman, DWMA, Anantapur, limiting the action to only extending minimum time scale to the 19 daily wage employees but not regularization of their services”. A plain reading of the above Memo does not admit of any misinterpretation since it contains a manifest direction of the first respondent. The Memo has two limbs: namely, that the petitioners be extended the benefit of time scale and that the action of the Collector and Chairman DWMA, Anantapur, stood ratified, limiting it to the extent of paying the minimum time scale, but without regularization. Precisely, in the light of Act 2 of 1994, it can be seen that the respondent authorities having been conscious of the legal consequence emanating therefrom. The first respondent has refrained itself from extending the benefit beyond the time scale, thereby making a specific reference not to regularise the services of the petitioners. Having extracted the Memo dated 16.12.2008, it is apposite to examine the impugned Memo dated 30.01.2009, which reads as follows: “It is brought to notice that ratification orders issued in Government Memo reference 1st cited above have not been properly interpreted and the intention of Government ratifying the proposal of the District Collector and Chairman, Anantapur is only to pay daily wage employees as per Government Orders regarding payment for outsource employees issued keeping in view the provisions of Act 2 of 1994 read with G.O.Ms.No.212 (Finance & Planning) Department, dt. 22.04.1994 and further orders issued from time to time”. Even after an intense scrutiny of both the Memos, which are in any way cryptic, I could not find anything incomprehensible in Memo dated 16.11.2008, giving rise to Memo dated 30.01.2009 as a corrective measure to hold that the earlier Memo was misinterpreted. 22.04.1994 and further orders issued from time to time”. Even after an intense scrutiny of both the Memos, which are in any way cryptic, I could not find anything incomprehensible in Memo dated 16.11.2008, giving rise to Memo dated 30.01.2009 as a corrective measure to hold that the earlier Memo was misinterpreted. Further, for the reasons stated supra, the provisions of Act 2 of 1994 read with G.O.Ms.No.212 (Finance & Planning) would not come in the way since the directive in Memo, dt.16.11.2008, confines itself to extending the benefit of time scale and nothing beyond. If an authority issues an order, and for whatever reason it has come to be realised that the order suffers from legal infirmity, it cannot be said that the said authority is bound by the order passed by him. In fact, as a matter of administrative felicity, the self same authority has got the power to rectify the mistake he has committed or remedy the anomalous situation, if arisen, by issuing subsequent proceedings rescinding or recalling the earlier order, which was passed validly in the first place subject to other concomitant constraints. It goes without saying that this rectificatory process shall be after due observance of the rules governing the field and after scrupulously complying with the principles of natural justice. The authority cannot simply wish away the inconvenient order, much less take recourse to holding that it is misinterpreted or misapplied by subordinates. In the present case, the Memo dated 30.01.2009 is one such instance, where the authorities have extended the time scale through a Memo having binding force; it was acted upon and implemented too. Accordingly, without further cogitation, this court is inclined to hold, and indeed holds, that the Memo dated 30.01.2009 is clearly unsustainable and does not have the effect of effacing Memo, dated 16.10. 2008. Before parting with the matter, it is felicitous to observe that despite voluminous pleading and documents filed on behalf of the Government, the respondents have not denied the specific instance of extending the benefit selectively to certain similarly placed persons in another district. It is expected that the action of the Government authorities is required to be informed by reason and imbued with fairness, apart from having permeated with a uniform policy. For the foregoing reasons, the Writ Petition is allowed. No order as to costs. It is expected that the action of the Government authorities is required to be informed by reason and imbued with fairness, apart from having permeated with a uniform policy. For the foregoing reasons, the Writ Petition is allowed. No order as to costs. The miscellaneous applications, if any, pending in this Writ Petition, shall stand closed.