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2019 DIGILAW 277 (AP)

State of Andhra Pradesh v. L. B. M. Krishna

2019-10-15

C.PRAVEEN KUMAR, CHEEKATI MANAVENDRANATH ROY

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ORDER : C. Praveen Kumar, J. 1. Aggrieved by the order of the Andhra Pradesh Administrative Tribunal, Hyderabad, in OA No. 2889 of 2015 dated 27.4.2017, the present writ petition came to be filed seeking issuance of writ of certiorari calling for records relating to and connected with OA No. 2889 of 2015 and set aside the order dated 27.4.2017 in the said O.A. by holding that the same is erroneous and contrary to law. 2. The brief facts which led to filing of the present writ petition are as follows: A batch of Original Applications came to be filed before the Andhra Pradesh Administrative Tribunal, Hyderabad, by the applicants therein, who were initially appointed as Vocational Instructors on part-time basis on different dates during the years 1985-1991. Initially they were paid Rs. 15/- per class and they were asked to take 10 classes per week, which was however, enhanced to Rs. 6,000/- per month irrespective of the work load. Thereafter, the Government introduced the Vocational Instructor post to ensure that the students who come out of school would be equipped with the training to eke out their livelihood. About 1,030 Vocational Instructors posts were sanctioned and the applicants therein were engaged as Vocational Instructors. They were selected through selection committees or employment exchanges and were eligible to be appointed as Vocational Instructors. When their services being continued on temporary basis on consolidated pay, a representation came to be made to the Government which led to issuance of G.O. Ms. No. 31 dated 13.2.2009 regularizing the services of 1,030 Vocational Instructors with effect from 13.2.2009. Instead of regularising their services from the date of their initial appointment, their services came to be regularised with effect from February, 2009. The past service of the petitioners as part-time employees in the very same faculty was not taken into consideration for payment of pension. As such, the applicant alongwith others filed OA No. 8904 of 2011 and Batch questioning the action of the authorities in not including the period of service as part-time employees for the purpose of calculating the pensionary benefits. 3. As such, the applicant alongwith others filed OA No. 8904 of 2011 and Batch questioning the action of the authorities in not including the period of service as part-time employees for the purpose of calculating the pensionary benefits. 3. A counter came to be filed by the authorities disputing the issues raised in the O.As., stating that in view of Rule 10(f) of the Andhra Pradesh State and Subordinate Service Rules, 1996 and Rules 13 and 14 of the Andhra Pradesh Revised Pension Rules, 1980, the applicants are not entitled for the said benefit. 4. However, after hearing all the concerned and relying upon a judgment of this Court in Devarakonda Sri Lakshmi v. Government of A.P., 2010 (2) ALD 165 , the Tribunal granted the relief to the applicants therein to the extent of counting the past service prior to their regularisation for the purpose of pension and directed the respondents therein to pass appropriate orders. Thereafter the representation made by the applicants for implementation of the said order came to be rejected on the ground that "to pass appropriate orders" does not mean to accept their request. As such, OA No. 2889 of 2015 and Batch came to be filed which were allowed directing the respondents therein to pass appropriate orders within a period of eight weeks from the date of receipt of the said order. Challenging the order in OA No. 2889 of 2015 dated 27.4.2017, the present writ petition came to be filed by the respondents therein. 5. Learned Government Pleader for Services-I appearing for the petitioners would contend that in view of Rule 10(f) of the Andhra Pradesh State and Subordinate Service Rules, 1996 and Rules 13 and 14 of the Andhra Pradesh Revised Pension Rules, 1980, the respondent herein, who is the applicant in OA No. 2889 of 2015, is not entitled for any relief. However, Sri P.S.P. Suresh Kumar, learned Counsel for the respondent herein, would contend that the law on this issue is well-settled and as such, the respondent herein is entitled for the relief granted to him. 6. The short point that arises for consideration in this writ petition is, whether the past services of the applicant in O. As., i.e., prior to their regularisation can be taken into consideration for the purpose of pension? 7. In our view this issue is no more res integra. 6. The short point that arises for consideration in this writ petition is, whether the past services of the applicant in O. As., i.e., prior to their regularisation can be taken into consideration for the purpose of pension? 7. In our view this issue is no more res integra. A Division Bench of this Court in Devarakonda Sri Lakshmi's case (supra), held as under: "The law is well-settled that the mere form of the order is irrelevant but the surrounding facts and circumstances shall be taken into consideration to find out the true character of the order. Despite the use of a specific expression, the Court has to consider whether the employee had a right to such post. Particularly when the services rendered by a temporary employee are followed by regularization of his service, there is no reason to exclude the period of temporary service for computing the qualifying service for the purpose of pensionary benefits. It is also relevant to notice that Rule 14 of the A.P. Revised Pension Rules, 1980 provides that the services of a Government Servant shall not qualify for pension unless his duties and pay are regulated by the Government or under conditions determined by the Government. Sub-rule (2) of Rule 14 further made it clear that the expression 'service' means that service under the Government and paid by the Government from the Consolidated Fund of the State. In the light of Rule 14, the true test is whether the services of the employee were regulated by the Government and whether he was paid from the Consolidated Fund of the State. Any period of service which satisfies the above test, in my considered opinion shall be treated as qualifying service for the purpose of Rule 13. For the aforesaid reasons, I do not find any substance in the contention of the respondents that the period of service spent by the petitioner on consolidated pay cannot be taken into consideration for determining her qualifying service. Accordingly, the impugned action of the respondents in denying the petitioner pensionary benefits is hereby declared as arbitrary and unreasonable." 8. Similarly in State of Tamil Nadu v. T.N. Registration Department Ministerial Service Association, (2001) 10 SCC 473 , the Apex Court while dealing with an identical issue, observed as under: "1. Accordingly, the impugned action of the respondents in denying the petitioner pensionary benefits is hereby declared as arbitrary and unreasonable." 8. Similarly in State of Tamil Nadu v. T.N. Registration Department Ministerial Service Association, (2001) 10 SCC 473 , the Apex Court while dealing with an identical issue, observed as under: "1. The State of Tamil Nadu is in appeal before us challenging the judgment dated 20.11.1990 passed by the Tamil Nadu Administrative Tribunal, by which the respondent was held entitled to count the period from 28.6.1950 (the date on which he was appointed) till 3.12.1962 as the period for the benefit of pension under the Tamil Nadu Pension Rules, 1978. 2. The contention of the learned Counsel appearing on behalf of the State of Tamil Nadu is that the post of Section Writer which was held by the respondent was brought under graded pay with effect from 1.10.1970, and, therefore, he would be entitled to pension only with effect from that date. It is pointed out that, prior to 1.10.1970, the respondent was being paid a fixed salary every month and, therefore, the period from 28.6.1950 to 2.12.1963 cannot be counted for purposes of pension particularly as the respondent has already been paid one month's pay for every completed year of service for the period aforesaid. 3. A perusal of the judgment passed by the Tribunal indicates that the State Government had contended that the respondent was not entitled to count the period from 1950 to 1963 for purposes of pension, as he had rendered only temporary service for that period. The other contention was that Section Writers would be entitled to count the period of service for purposes of pension only with effect from 1.10.1970 as it is from that date that the post was brought under graded pay. Both the contentions were rejected. The Tribunal found that Rule 2 of the Tamil Nadu Pension Rules, 1978 categorically provides that the Rules were applied to all Government servants appointed to the service and posts in connection with the affairs of the State which are borne by pensionable establishments, whether temporary or permanent. Consequently, even though the respondent had rendered temporary service for the period from 1950 to 1963, he would be entitled to count that period for the purpose of pension. Consequently, even though the respondent had rendered temporary service for the period from 1950 to 1963, he would be entitled to count that period for the purpose of pension. The Tribunal also found that the date 1.10.1970 on which the post of Section Writer was brought under graded pay has no nexus with the benefit of pension payable to those Section Writers who had, prior to that date, rendered temporary service. It was held that on the basis of that date, the employees could not be categorised into two classes. 4. Learned Counsel for the State contended that the post of Section Writer was not a pensionable post and it became a pensionable post only with effect from 1.10.1970 and, therefore, the entire period of service rendered by the respondent on this post prior to 1.10.1970 would have to be excluded. This was not the contention raised before the Tribunal nor has any rule to that effect been shown to us that the post of Section Writer was a non-pensionable post upto 1.10.1970. We, therefore, cannot accept this contention. 5. In view of the above, this appeal has no merits and is dismissed, but without any order as to costs." 9. Similar view was taken by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in State of Andhra Pradesh v. M. Raja Rao, Order dated 17.3.2016 in WP No. 8201 of 2016, 2016 (4) ALD 662 (DB) and also the Karnataka High Court in B.H. Mahadevappa v. Karnataka Power Transmission Corporation Ltd., ILR 2006 Kar. 3405. 10. In view of the judgments of the Apex Court and other High Courts referred to above, we are of the view that the past service of the applicant, who is the respondent herein, prior to his regularisation, has to be considered for the purpose of pensionary benefits. 11. It is also to be noted here that the orders passed by the Tribunal in OA No. 6524 of 2014 and Batch dated 14.11.2014 were not challenged and they have become final. Therefore, once the orders of the Tribunal are not challenged and have become final, there is no other option for the authorities except to implement the same. 12. It is also to be noted here that the orders passed by the Tribunal in OA No. 6524 of 2014 and Batch dated 14.11.2014 were not challenged and they have become final. Therefore, once the orders of the Tribunal are not challenged and have become final, there is no other option for the authorities except to implement the same. 12. Viewed from any angle, we find no grounds to interfere with the impugned order and the writ petition is liable to be dismissed. 13. Accordingly, the writ petition is dismissed. No costs. 14. Consequent, miscellaneous applications, pending if any, shall also stand closed.