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2023 DIGILAW 239 (AP)

Government of Andhra Pradesh v. SK. Nooruddin

2023-01-31

B.V.L.N.CHAKRAVARTHI, U.DURGA PRASAD RAO

body2023
ORDER : U. Durga Prasad Rao, J. Challenge in this Writ Petition at the instance of the State Government of Andhra Pradesh is to the order dated 31.05.2017 in O.A.No.889 of 2013 passed by Andhra Pradesh Administrative Tribunal allowing the O.A. filed by the respondent Nos.1 to 5 herein and directing the petitioner Nos.1 to 3 herein to sanction and pay minimum of scale of pay i.e., Basic Pay + D.A. without any other allowances attached to the regular post similar to the cadre of the respondent Nos.1 to 5 herein as per revised pay-scales allowing from time to time in terms of G.O.Ms.No.79 I & CAD (Ser.V.2) Department, dated 22.05.2009 and G.O.Rt.No.575 I & CAD (Ser.V.1) Department, dated 15.05.2012. 2. The factual matrix of this case is thus : (a) Respondent Nos.1 to 5 have been working as NMR Mazdoors in the Department of Irrigation and CAD from different dates prior to 25.11.1993, the cut-off date fixed as per G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department, dated 22.04.1994 and G.O.(P).No.112 Finance & Planning (FW.PC.III) Department, dated 23.07.1997. However for want of continuous services of five years as on the cut-off date of 25.11.1993 as fixed in the aforesaid two G.Os. they are ineligible for regularization of their services. (b) While so, the 1st petitioner herein vide in G.O.Ms.No.79 I & CAD (Ser.V.2) Department, dated 22.05.2009 directed the Engineer in Chief (IW) I & CAD Department to allow minimum of the time scale of pay i.e., Basic Pay + D.A. without any other benefits to 281 H.R. workers of Telugu Ganga Project as per PRC Scales 2005 from prospective date i.e., from the date of issue of the order with a condition that the extension of minimum of the time scale sanctioned shall not confer any right of regularization of their services. (c) While so, vide in G.O.Rt.No.575 I & CAD (Ser.V.1) Department, dated 15.05.2012, the Government basing on the recommendations of the 3rd petitioner herein directed to sanction the minimum of time scale of pay + D.A. to three NMRs working in Irrigation Circle, Bobbili, Vizianagaram District who were engaged before the cut-off date i.e., 25.11.1993 and working, on par with the 281 HR workers of Telugu Ganga Project who obtained similar benefit of G.O.Ms.No.79 I & CAD (Ser.V.2) Department, dated 22.05.2009, from the prospective date. (d) While so, the 3rd petitioner herein vide his letters No.ENC/IW/P&M/EE.III/W2/21180/2005 PF, dated 15.04.2011 and dated 14.05.2012 addressed to the State Government for payment of minimum of scale of pay to NMRs including the respondent Nos.1 to 5 herein on par with the HR workers/NMRs covered by G.O.Ms.No.79 and G.O.Rt.No.575. However, the Government vide Memo No.12002/Ser.V.1/2012-2, I & CAD (Ser.V) Department, dated 25.04.2013 rejected the claim of the respondent Nos. 1 to 5 herein on the ground that they have not completed the required continuous service of five years/ten years as on the cut-off date and further, in those G.Os. there is no mention of allowing minimum time scale of pay to the Daily Wage/NMR/Consolidated Pay/Part Time Employees those who have not completed required service of five years as on 25.11.1993. Consequently the 5th Petitioner herein issued the order dated 10.06.2013 rejecting the claim of the respondent Nos.1 to 5 herein. (e) Hence, respondent Nos.1 to 5 herein filed O.A.No.889 of 2013 before the A.P. Administrative Tribunal. The Government opposed the O.A. The Administrative Tribunal having considered the fact that earlier 281 HR workers of Telugu Ganga Project were extended the benefit of minimum time scale of pay i.e., Basic Pay + D.A. as per G.O.Ms.No.79 I & CAD (Ser.V.2) Department, dated 22.05.2009 and subsequently, in the same lines three NMRs working in Irrigation Circle, Bobbili were extended similar benefit i.e., Basic Pay + D.A. vide G.O.Rt.No.575 I & CAD (Ser.V.1) Department dated 15.05.2012 and that the applicants in O.A. are similarly situated persons and rejection of the Government to extend similar benefit to them vide order of the Executive Engineer, Drainage Division, Bheemavaram, West Godavari District dated 10.06.2013 is against the stand of the Government reflected in earlier G.O.Ms.No.79 and G.O.Rt.No.575 and further, in view of the principle laid down by the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 , the applicants in O.A. are entitled to Basic Pay + D.A. without any allowances. Umadevi and Others, (2006) 4 SCC 1 , the applicants in O.A. are entitled to Basic Pay + D.A. without any allowances. The Tribunal accordingly allowed the O.A. and directed the respondent Nos.1 to 3 to grant to the applicants the minimum scale of pay i.e., Basic Pay + D.A. without any other allowances attached to the regular posts in the same cadre of the applicants as per revision of pay scales allowed from time to time in terms of G.O.Ms.No.79 I & CAD (Ser.V.2) Department dated 22.05.2009 and G.O.Rt.No.575 I & CAD (Ser.V.1) Department dated 15.05.2012. Hence, the present writ petition by the Government. 3. Respondents filed counter and opposed the Writ Petition. 4. Heard arguments of learned Government Pleader for petitioners and Sri M. Pitchaiah and Sri M. Ratna Reddy, learned Counsel for respondents. 5. The main plank of argument of learned Government Pleader is that the order in O.A.No.889 of 2013 passed by the A.P. Administrative Tribunal in so far as its direction to the Government to pay Dearness Allowance also apart from paying the minimum of the scale of pay to the respondents herein on par with the H.R. workers/NMRs is unsustainable in law, in view of the clear exposition made by Hon’ble Apex Court in its decisions i.e., Umadevi (Supra 1) and State of Punjab Vs. Jagjit Singh, MANU/SC/1357/2016 wherein the Hon’ble Supreme Court held that the Daily Wage employees, NMRs, etc., who are of the ilk of the respondents herein are only entitled to the minimum of pay-scale of the category to which they belong to and they would not be entitled to allowances attached to the posts held by them. Learned Government Pleader would thus strenuously argue that the Tribunal committed grave error in awarding D.A. to the respondents herein in addition to the minimum scale of pay which is contrary to the spirit of the above two judgments. 6. Learned Government Pleader would further submit that emulating the spirit of the decision in Jagjit Sing’s case (Supra 2), the State Government have issued G.O.Ms.No.142 Finance (HR.I-Plg. & Policy) Department, dated 27.08.2018 to extend the remuneration equivalent to the minimum of the time scale in the revised pay-scales of 2015 to the full time/NMR/Daily Wage/Consolidated pay/Part Time employees who were appointed before the cut-off date i.e., 25.11.1993 in various State Government Departments. & Policy) Department, dated 27.08.2018 to extend the remuneration equivalent to the minimum of the time scale in the revised pay-scales of 2015 to the full time/NMR/Daily Wage/Consolidated pay/Part Time employees who were appointed before the cut-off date i.e., 25.11.1993 in various State Government Departments. For the purpose of extending the minimum time scale in the revised pay-scales of 2015, the learned Government Pleader would submit, the employees have been conveniently divided into two categories. Firstly, those workers who have been already drawing minimum pay + D.A. in revised pay-scales of 2010 and secondly, those part time employees, who were appointed prior to 25.11.1993 but coming into the scheme for the first time. So far as, first category is concerned, they have been drawing minimum pay + D.A. by virtue of different G.Os., issued long back and therefore the Government while issuing G.O.Ms.No.142 did not wish to deprive them of the benefit of D.A., though in strict sense, they are not entitled to the D.A., post Jagjit Singh’s decision (Supra 2). Therefore while maintaining their minimum pay + D.A., the same was updated to the revised pay-scales of 2015. He would further submit, so far as the second category of employees is concerned, since they are brought under the scheme of the G.O. for the first time and as they were not granted either minimum pay-scale or the D.A., equivalent to the similarly placed regular employees in the past, such second category of employees is conferred only minimum pay in revised pay-scales of 2015 without extending the D.A., by following judgment in Jagjit Singh’s case (Supra 2). Learned Government Pleader would argue that G.O.Ms.No.142 Finance (HR.I-Plg. & Policy) Department, dated 27.08.2018 will squarely apply to the case of respondents and they have not so far challenged the said G.O. as such, in this backdrop, the order of the Tribunal granting D.A. is liable to be set aside. He thus prayed to allow the Writ Petition. 7. Learned Government Pleader would argue that G.O.Ms.No.142 Finance (HR.I-Plg. & Policy) Department, dated 27.08.2018 will squarely apply to the case of respondents and they have not so far challenged the said G.O. as such, in this backdrop, the order of the Tribunal granting D.A. is liable to be set aside. He thus prayed to allow the Writ Petition. 7. Per contra, learned counsel for respondent Sri M. Pitchaiah while supporting the impugned order of the Tribunal would argue that the Tribunal having considered the fact that the Government have extended the benefit of minimum scale of pay + D.A., to the H.R./NMR workers in the Telugu Ganga Project as well as Irrigation Circle of Bobbili and the applicants before the Tribunal were similarly placed workers and discharging the similar responsibilities, held that on the principle of equal pay for equal work, Government shall extend the similar benefit to the applicants also which was already extended to the other workers by virtue of G.O.Ms.No.79 and G.O.Rt.No.575 and therefore there is no illegality therein. He would further argue that G.O.Ms.No.142, upon which much emphasis is laid by the Government, was passed subsequent to the order passed by the Tribunal in O.A.No.889 of 2013. The said G.O. applies only prospectively to those employees who will be brought under the scheme of said G.O. for the first time, but not to the respondents herein whose case was considered with reference to G.O.Ms.No.79 and G.O.Rt.No.575 on parity principle and allowed by the Tribunal. Since the said order was much prior to the G.O.Ms.No.142, the Government have to oblige and implement the order in O.A.No.889 of 2013 scrupulously and grant minimum scale of pay i.e., basic pay + D.A. without other allowances attached to the regular posts in the same cadre as per the revision of pay scales allowed from time to time. He thus prayed to dismiss the Writ Petition. 8. The point for consideration is whether the applicants in O.A.No.889/2013/respondents No.1 to 5 in the Writ Petition are entitled to minimum scale of pay i.e., basic pay alone as contended by the Government or are they entitled to basic pay + D.A. on par with the employees holding regular post in the same cadre of the applicants as per the revised pay scales allowed from time to time in terms of G.O.Ms.No.79 and G.O.Rt.No.575 I & CAD, as held by the A.P.Administrative Tribunal? 9. 9. POINT: The point for consideration holds in narrow compass that is to say, whether the respondent Nos.1 to 5 herein are additionally entitled to Dearness Allowance on the basic pay. As can be seen, the Government has not disputed issuing G.O.Ms.No.79 I & CAD Department dated 22.05.2009 extending the benefit of basic pay + D.A. without any other benefits to 281 H.R. workers of Telugu Ganga Project who were in service as on 25.11.1993 as per Pay Revision Scales of 2005 with prospective application. It is also not disputed that in the same lines the Government have issued G.O.Rt.No.575 I & CAD Department dated 15.05.2012 extending the benefit of minimum time scale of pay + D.A. to 3 NMRs working in Irrigation Circle, Bobbili in Vizianagaram District who were engaged before 25.11.1993 on par with the 281 H.R. workers of Telugu Ganga Project from the prospective date. It is also not disputed by the Government that respondents No.1 to 5 herein were engaged before 25.11.1993 and they have been discharging similar works as that of the regular employees in their cadre. In spite of the aforesaid admitted facts, the Government refuses to grant D.A. to the respondent Nos.1 to 5 herein on the ground that in Jagjith Singh’s case (Supra 2) the Supreme Court held that the daily wage earners/NMRs etc., are entitled to minimum of the pay scale of the category to which they belong but would not be entitled to allowances attached to the posts held by them and in the line of said judgment, the Government issued G.O.Ms.No.142 dated 27.08.2018 and since the petitioners fall within the second category mentioned in the said G.O. and coming into the scheme of the G.O. for the first time, they will be entitled to minimum pay in RPS 2015 but not any other allowances including D.A. It is also the contention of the Government that the respondents 1 to 5 herein cannot resort to the earlier G.O.Nos.79 and 575 which were superseded by G.O.Ms.No.142. 10. We find no force in the contention of the Government. 10. We find no force in the contention of the Government. It is true that in Jagjit Singh’s case (Supra 2) the Apex Court after making an elaborate survey on its earlier decisions rendered on the principle equal pay for equal work, has, with reference to the claim of pay parity raised by temporary employees with different designations viz., work charge/daily wage/casual/adhoc/contractual, etc., who perform the same work as that of the regular employees in their cadre, held as follows : 52. “In view of the all our above conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors (CWP No.14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab & Ors. vs. Rajinder Singh & Ors. (LAP No.337 of 2003, decided on 07.01.2009) is also liable to be set aside, and the same is hereby set aside. We affirm the decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA No.1024 of 2009, decided on 30.08.2010), with the modification, that the concerned employees would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them.” 58. “In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to the regular employees, holding the same post.” 11. As per the above decision, the temporary employees with similar different designations are entitled to only minimum of pay scale at the lowest grade extended to the regular employees of their cadre but would not be entitled to other allowances. There is no demur in that regard. Be that as it may, in the present instance, long before the above judgment, the Government have issued G.O.Ms.No.79 conferring benefit of not only the minimum scale of pay but also D.A. to the temporary employees i.e., 281 H.R. workers of Telugu Ganga Project and also issued G.O.Rt.No.575 granting similar benefit to the 3 NMRs working in Irrigation Circle, Bobbili. Be that as it may, in the present instance, long before the above judgment, the Government have issued G.O.Ms.No.79 conferring benefit of not only the minimum scale of pay but also D.A. to the temporary employees i.e., 281 H.R. workers of Telugu Ganga Project and also issued G.O.Rt.No.575 granting similar benefit to the 3 NMRs working in Irrigation Circle, Bobbili. While so, the 3rd petitioner herein submitted proposals to confer similar benefit to 78 workers working in 51 Circles vide his letter dated 15.04.2011 to the Government. The respondents 1 to 5 were also mentioned in the said proposals. However, curiously the said proposal was rejected by the Government vide its Memo No.12002/Ser.VI/2012-2 I & CAD (Ser.V) Department dated 25.04.2013 on the grounds that the proposed employees have not completed required service of five years as on the cut-off date of 25.11.1993 as stipulated in G.O.Ms.No.212 Fin. (PCIII) Department dated 22.04.1994. It must be noted that the aforesaid G.O.Ms.No.212 dated 22.04.1994 was issued in a different context of regularization of services of temporary employees i.e., daily wage earners/NMRs etc. For such regularization, apart from other conditions, it was stipulated that they should have a continuous minimum period of five years of service as on 25.11.1993. Naturally, the said G.O.Ms.No.212 did not speak anything about granting of minimum scale of pay to the temporary employees since the same is altogether a different concept. Challenging the said Government Memo dated 25.04.2013 and consequential speaking order of the 5th petitioner herein, the respondents 1 to 5 filed O.A.No.889/2013 and the Administrative Tribunal taking into consideration the two G.Os. i.e., G.O.Ms.No.79 and G.O.Rt.No.575 and observing that the applicants before it are similarly situated persons as that of the H.R. workers and NMRs held that there should not be any discrimination among the equals and the impugned proceedings show the discrimination among the equals. The Tribunal ultimately allowed the O.A. and directed the Government to pay minimum of scale of pay i.e., basic pay + D.A. to the applicants as attached to the regular posts in the same cadre and as per Revision Pay Scales allowed from time to time. Thus as can be seen, long prior to G.O.Ms.No.142, the claim of the respondents 1 to 5 for equal pay came up for consideration before the Government which was unjustly rejected on untenable grounds. In that backdrop, order was passed in O.A.No.889/2013. Thus as can be seen, long prior to G.O.Ms.No.142, the claim of the respondents 1 to 5 for equal pay came up for consideration before the Government which was unjustly rejected on untenable grounds. In that backdrop, order was passed in O.A.No.889/2013. Therefore, there is no teeth in the argument of learned Government Pleader that the respondents 1 to 5 herein came into the scheme of G.O.Ms.No.142 dated 27.08.2018 for the first time and hence they are entitled to only minimum scale of pay in RPS 2015. It must be noted that their case was considered by the Tribunal on par with the similarly situated employees who were benefitted under G.O.Ms.No.79 and G.O.Rt.No.575 and direction was issued to the Government to extend the same benefit to the applicants without showing any discrimination. Though in the Writ Petition it was claimed that the G.O.Ms.No.142 was issued by superseding the earlier two G.Os., however, in G.O.Ms.No.142 we do not find such mentioning. So, having regard to the fact that similar employees were already extended benefit of minimum scale of pay + D.A., there is no compelling legal or factual reason for the Government to deny such benefit to the respondents 1 to 5 herein. The G.O.Ms.No.142 is self explanatory that it is prospective in operation. However the claim of respondents 1 to 5 herein arose much earlier to this G.O. in the light of the two G.Os. which were in vogue by then. Therefore in our considered view, the Tribunal has rightly directed the Government to grant basic pay + D.A. attached to the regular posts in the same cadre of the respondents 1 to 5 herein as per revision of pay scales allowed from time to time as per the aforesaid two G.Os. We see no illegality or irregularity in the order impugned. Accordingly the Writ Petition is dismissed. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.