HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.V.M.P.No.2634 of 2017
In
W.P.M.P.No.6424 of 2016
In
WP.No.5029 of 2016
ORDER:
At the request of Sri Prabhakar Sripada, learned counsel for the vacate stay petitioner, the interlocutory application has been taken up for hearing.
Learned counsel stressed that the interim order granted in this case has to be vacated. He has filed the vacate stay petition, expressed his urgency and therefore, this Court took up the same for argument. Ms.P.Akhila Naidu appeared for Sri N.Ravi Prasad, learned counsel for the first respondent/petitioner in the writ petition.
Learned counsel for the petitioner argues that the present petitioner has retired from the services of the respondent No.4 after working in its B.Ed college in Vijayawada. As the UGC scales were not paid to the petitioner and the retirement benefits were also not paid as per the UGC norms, the writ petition is filed. The interim order was granted directing the respondent No.4-vacate stay petitioner to calculate the pension of the petitioner as per the A.P. Revised Pension Rules.
This order is sought to be vacated. The arguments in this case were lengthy and elaborate. However, this Court is conscious of the fact that it is disposing only the interlocutory application and not the main writ petition. Hence, for the purpose of determining the interim application only the hearing was held and the order is passed. The opinion expressed are all „prima facie‟ opinions only.
Learned counsel for the first respondent/petitioner drew the attention of this Court to the norms and standards of B.Ed., education; for awarding B.Ed. degree etc., which are filed with the additional memo.
She points out that academic staff of the institution shall be paid scale of pay as prescribed by the UGC from time to time. She also points out that similar issues between the respondent and other lecturers arose in the State of Kerala, and the same resulted in the filing of original petitions before the Kerala High Court. Relying upon OP.No.7818 of 2001 which is an order passed by a learned single Judge of the Kerala High Court and the order in W.A.No.1625 of 2009 in O.P.No.32994 of 2000 which is an order passed by the Division Bench of the Kerala High Court, the learned counsel argues that the respondents are bound to pay salary as per the UGC norms.
She points out that Hon‟ble Supreme Court also did not interfere against the orders passed in Writ Appeal No.1625 of 2009 and dismissed the Special Leave Appeal No.30048 of 2014. Similarly, against OP.No.7818 of 2001 also, the SLP is dismissed according to the counsel for the petitioner. Therefore, she argues that this Court also should pass a similar order.
Relying upon a Division Bench judgment of the A.P.High Court in Md.Ghouse v. The Correspondent, Dakshina Bharat Hindi Pracharasabha1, learned counsel argues that the 4th respondent is functioning as a State and is amenable to the writ jurisdiction of this Court.
She points out that the UGC guidelines were also considered in the judgment and more particularly at para 13. Since the service of the petitioner was in the State of Andhra Pradesh, learned counsel argues that this Court has the jurisdiction to pass necessary orders and that the respondent is amenable to the writ jurisdiction. It is her contention that the “jurisdiction clause” on which the respondents rely is not applicable to the petitioner or the petitioner‟s case and that therefore the writ is maintainable in this Court and that the interim order granted should not be vacated.
In reply to this, Sri Prabhakar Sripada argues vehemently that the prayer in the writ petition is not clear and is ambiguous. He also points out that a declaration has not sought before seeking a direction that the petitioner is entitled to the UGC norms.
He also raises a question about the manner in which the interim order was passed by the learned single Judge and argues that the A.P. Pension Rules are not applicable and without considering the same, the learned single Judge made the A.P.Pension Rules applicable. Manu/AP/1097/2001 According to him, nobody in the services of the 4 th respondent is claiming UGC scales. He argues that UGC scales are not applicable to the people working with the 4th respondent and that A.P. Pension Rules are also not applicable.
Therefore, he submits that the order passed is incorrect. He also argues that the petitioner had already approached the Madras High Court by filing W.P.No.31789 of 2014 to enhance her age of retirement. Relying upon the Service Rules of the 4th respondent, learned counsel argues that as per Rule 24(i) the Court having the jurisdiction for redressal of any employees the dispute/grievance is only the Court in Chennai.
Relying upon the use of the word „only‟ in this clause, learned counsel argues that it specifically restricts the jurisdiction to the Courts at Chennai. Learned counsel also cited case law to show when such clauses are there, no other Court can exercise jurisdiction. He also argues that the 4th respondent is not a State and is not discharging State functions and so is not amenable to the writ jurisdiction of this Court.
He also argues relying upon case law that fixing of scale of pay etc., are executive functions and that the Court should not interfere in such matters. Learned counsel therefore argues that the interim order granted should be vacated.
In rejoinder, Ms.Akhila Naidu argues that the jurisdiction clause on which the petitioner relies upon is not applicable and that the case law cited by her makes it clear that UGC scales are paid. She also relies upon G.O.Ms.No.14 to argue that learned single Judge did not commit any mistake in adopting the various benefits to the petitioner. COURT: This Court as mentioned earlier is only dealing with the interim application and the prayer to vacate the interim order.
The Division Bench of this Court in the judgment relied upon by the learned counsel for the petitioner was dealing with the case of the Dakshina Bharatha Hindu Prachara Sabha which is the present respondent No.4. The Division Bench clearly held (after considering the law on the subject) that the Sabha is performing the primary sovereign functions of the State and is therefore amenable to the writ jurisdiction.
The two judgments of the Kerala High Court which are relied upon by the learned counsel for the petitioner also clearly held that UGC scales are payable to the teachers working under the 4th respondent. The 4th respondent is a party before the Kerala High Court. The Hon‟ble Supreme Court of India also did not interfere with these orders. Though the orders may not be binding on this Court, they have good persuasive value.
The petitioner was working in the B.Ed. college of the respondents. The norms and standards of B.Ed. which are filed as material papers clearly show that the academic staff of the institution including part time staff shall have to be paid such salary as may be prescribed at the UGC/University from time to time.
Therefore, this Court has to hold that the contention of the learned counsel for the petitioner that the respondent is not a State or that UGC scales are not applicable is not prima facie correct.
Coming to the issue of prayer being made and the interim order being granted, this Court notices that the learned single Judge relied upon G.O.Ms.No.14 while passing the said order. G.O.Ms.No.14 is also filed as a material paper.
It is specifically asserted in the writ affidavit that the petitioner is entitled to pension under the A.P. Revised Pension Rules. G.O.Ms.No.14 is also specifically referred to in the writ affidavit also. It applies to all colleges receiving grants and where UGC scales are implemented. The G.O. itself mentions that State rules shall apply in respect of pension/gratuity etc., for those „drawing‟ UGC pay scales. This issue is not specifically answered in the vacate stay petition that has been filed. But it is asserted that the respondents have their own regulations and terms of appointment.
Therefore, it is asserted that the petitioner can get the retirement benefits in accordance with the Rules framed by the 4th respondent only. These service rules are filed as annexure to this affidavit.
Rule 2 of the Service Rules clearly states that they are applicable to the “post graduate and research complex of the Dakshina Bharatha Hindu Prachara Sabha” and all those who may be appointed in the post herein after these are come into effect from 01.02.2010. The applicability of these rules to the case of the petitioner who has been working from 1990 and in the B.Ed., college is also a matter to be examined further. Prima facie, this Court is of the opinion that the said service rules are not applicable to the petitioner who joined in 1990 and that G.O.Ms.No.14 is applicable.
As far as the issue of jurisdiction is concerned, Rule 24
(i) of the Rules clearly states that for redressal of any dispute, the employees can approach the Court at Chennai only. The case law relied upon by the learned counsel for the petitioner is beyond doubt. When such clear language is used, only that Court can have the jurisdiction. But the issue raised in this case is whether these Rules are applicable to the petitioner at all. As mentioned earlier, the rules prima facie appear to apply to the “Post Graduate and research complex”.
Apart from that, the issue whether the extraordinary jurisdiction of this Court under Article 226 can be curtailed by a clause in the rules (if it is applicable) is also to be considered. Lastly, learned counsel for the petitioner relied upon Shanti Devi v. Union of India and others2. In para 32 of this judgment, the Hon‟ble Supreme Court has held that retired employee who is receiving pension cannot be asked to go to another Court to file a writ petition.
He had a cause of action for filing a writ petition in the Patna Court. It was held 2020 (10) SCC 766 that for a retired employee convenience to prosecute the case at the place where he belongs to and was getting pension. Admittedly, in this case, the petitioner retired at Vijayawada within the jurisdiction of this Court. Therefore, the issue of jurisdiction is also a debatable issue and this Court cannot at this stage hold on the basis of the available material that this Court does not have the jurisdiction.
Hence, after considering all the submissions made by both the learned counsel, the case and the material produced etc., this Court has to hold that it does not find any reason to vacate the interim order that has been passed by this Court on 20.01.2017.
This WVMP is therefore dismissed. It is reiterated that all the opinions expressed/findings are for the purpose of deciding this application only and are not final opinions.
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