Jawaharlal
Nehru Technological University Vs. Smt. T. Sumalatha & Ors [2003] Insc 368
(11 August 2003)
S. Rajendra
Babu & P. Venkatarama Reddi. P. Venkatarama Reddi, J.
Respondents
1 to 4 were appointed as Investigators on a consolidated pay in the Nodal
Centre set up in the appellant- University under a scheme known as National Technical Manpower
Information System (NTMIS) sponsored by the then Ministry of Education and
Culture, Government of India. They are all Graduates.
They
were appointed on various dates between 1985 and 1991.
Initially,
their appointment was for 89 days and their services were being extended from
time to time on similar terms. The consolidated pay was revised twice and with
effect from 7.3.1997 they have been drawing a sum of Rs.2,475 p.m. as lumpsum
pay. The 5th respondent was appointed as Attender-cum-Sweeper in the year 1986
initially on daily-wage basis. Later on, she was placed on consolidated pay and
her appointment too was being renewed from time to time. It is not in dispute
that they were all appointed by the competent authorities of the University and
the administrative control rests with the University.
It is
seen from the communication dated 9th November, 1983 from the Union Ministry of
Education that a scheme known as 'National Manpower Information System' was
evolved by the Government of India. Its objective is "to provide upto date
and meaningful manpower information on a continuing basis to enable the
concerned authorities to anticipate areas of growth in the field of Science and
Technology and consequently plan for technical manpower development on the
proper lines". Under that scheme, the NMIS will have a Lead Centre in the Institute of Applied Manpower Research attached to the Ministry of
Education and 17 Nodal Centres in the selected higher institutes of Engineering
and Technology. The Lead Centre will be coordinating with the functions of
various Nodal Centres and oversee the proper functioning of those Centres. The
appellant, JNT University, Hyderabad is one of the institutions selected
for the establishment of Nodal Centre. The Nodal Centres would be mainly
concerned with the collection of data and the preliminary processing of data so
as to make it suitable for further processing in a computer. The Nodal Centre is
also expected to undertake analytical work wherever required. An advisory body
has been formed for each State so as to provide guidance and support to the
Nodal Centres. The Head of the institution of the Nodal Centre, the Director of
Technical Education of the State and some other officials are its members.
Nodal Centres were authorized to appoint the staff— Project Officer (Reader),
P.A., Computer Operator and Research Associate (one post each) for whom the
Scales of Pay are specified. It appears that these posts were filled up by
drawing the personnel from University on deputation. We are more concerned here
with para 5 of the scheme which reads as follows:
"5.
Besides, the nodal Centres shall also be entitled to collect the necessary data
through appropriate programming by employing students of senior classes i.e.,
postgraduate level and Ph.D. level during the vacation periods. The date thus
collected can be processed by the nodal centres on a continuing basis round the
year. Each nodal centre will be entitled to an assistance from senior students
amounting to 55 man months in a year. Each student would be paid by the
concerned nodal centres at the rate not exceeding Rs.500/- per month. In all
each nodal centre would be entitled to incur expenditure not exceeding Rs.27,500/-
per annum for collection of data by employing students of the senior
classes." It appears that the Nodal Centre was sanctioned initially for a
period of one year and nine months. However, it is being continued. It is not
in dispute that the Nodal Centre is financed entirely by the Ministry of
Education which releases the grants from time to time.
The
allocation of funds for various items of expenditure including staff salaries
is specifically mentioned in the order releasing recurring grant. The
consolidated pay was enhanced by the Government of India on two occasions,
while releasing the grants. As the Postgraduate Engineering students referred
to in para 5 of the scheme were not available, respondents 1 to 4 were
recruited as Investigators on consolidated pay.
Inspired
by the Judgment of Andhra Pradesh High Court in a writ petition filed by the
employees of the University who were appointed temporarily on consolidated pay
and working in the self- supporting schemes of the University, Respondents 1 to
5 herein filed Writ Petition under Article 226 of the Constitution in the High
Court of A.P. seeking a writ or direction to regularize their services and to
accord them regular pay-scales. The High Court allowed the writ petition and gave
a direction to the University to regularise the services of the writ
petitioners if they had completed three years of service and they are qualified
and the posts are advertised by the University. The State Government was also
directed to take a final decision on the proposal of the University to create
additional posts within the specified time limit. Review petition was filed by
the University contending that the Division Bench decision on which the learned
Single Judge of the High Court relied upon pertains to University employees
working on temporary or ad hoc basis whereas the writ petitioners in the
present case are entirely governed by the scheme formulated by the Government
of India. In the Review Petition, the Learned Judge focused his attention on GO
MS No. 212 (Finance & Planning) dated 22.4.1994 issued by the Government of
Andhra Pradesh and held that by virtue of the said GO which is applicable to
the University employees as well the service of the writ petitioners No. 1 to 3
and 5, who completed more than five years of service on the crucial date
mentioned in the GO, was liable to be regularised. As regards the 4th writ
petitioner, who did not complete three years of service by 25.11.1993, the
learned Judge directed the University to send proposal to the State Government
for creation of an additional post and the Government should take a decision
within one month from the date of the receipt of proposal. The High Court
further observed that after the post is sanctioned, the University shall advertise
and fill up the vacancy by appointing petitioner No. 4 if he is otherwise
qualified. The Review Petition was disposed of accordingly. It may be stated
that the High Court did not accept the contention of the University that the
writ petitioners are not employees of the University to whom the benefit of GO
MS No. 212 could be extended. Against the order of the learned Single Judge in
the Review Petition, the University filed Writ Appeal which was dismissed by
the Division Bench on 3.4.1997 affirming the order of the learned Single Judge.
The Division Bench observed that "all employments in the institute,
whether grant for the post comes from the State Government or from the Central
Government, are employments in the institute which is an agency of the Government
of the State of Andhra Pradesh and thus all Government orders intended to apply
to such agency of the Government of the State have to be applied to it."
On appeal by the University, this Court stayed the operation of the judgment of
the High Court.
We are
of the view that the High Court fell into error in applying GO No. 212 dated
22.4.1994 to the case of the writ petitioners. The observations of the Division
Bench that the Nodal Centre is an agency of the State Government, is obviously
without factual and legal basis. The terms and features of the scheme
unmistakably indicates that the University—a Centre of excellence chosen by the
Ministry of Education, acts for and on behalf of Government of India and the
Nodal Centre is nothing but the reflection of Central Government acting through
the media of University. The entire funding is done by the Central Government
and the Nodal Centre functions under the overall supervision and guidance of
the Lead Centre attached to the Ministry of Education. Even the details of
expenditure including the payments to be made to the staff of various
categories are spelt out in the scheme as well as in the orders releasing the
annual grants. There is, therefore, an obvious fallacy in the reasoning of the
High Court that the 'institute' (Nodal Centre) acts as an agency of the State
Government. The State Government does not come into the picture at all.
In our
view, it would be wholly inappropriate to apply GO No. 212 to the temporary
staff appointed by the University exclusively for the Nodal Centre set up under
the auspices of the Government of India. GO MS No. 212 is not intended to cover
the employees such as the writ petitioners who are engaged in the Nodal Centre
which for all practical purposes acts as a wing of the Central Government.
In one
sense the writ petitioners may be regarded as employees of the University as
they were appointed by the University and the disciplinary control vests with
the University. In another sense, they are protégés of the Central Government.
GO 212 has to be understood and applied, having due regard to its tenor and
purpose.
The
GO, no doubt, envisages regularization of the services of the persons appointed
on daily wages or consolidated pay who fulfill the conditions laid down therein.
But, it is intended to cover the categories of employees working in the State
Government departments/institutions or bodies controlled or administered by the
State Government and in respect of whom the State Government or such bodies
have to bear the financial burden on account of regularization. The last para
of GO No. 212 gives the clear indication of its purport and intendment. The
said para reads as under:
"All
the Departments of Secretariat/Heads of Departments are requested to process
the cases of absorption/ regularization of services of NMRS/Daily Wage
employees etc., in pursuance of the above scheme and obtain the clearance of
Govt. in Finance & Planning (PW PC III) Department before orders are issued
for such regularization or absorption." Can it be said that by virtue of
this provision, the State Government assumes the responsibility of absorbing
the staff employed in the organizations or establishments with which it has no
administrative or financial nexus, merely because an instrumentality of the
State is involved in managing it, that too, in a limited sense? The answer
could only be in the negative. When the State Government or its
instrumentalities have not created the posts on their own and do not bear any
part of financial burden, the question of getting the clearance from the
Finance and Planning department of the Government for the purpose of
regularization or absorption does not arise. Viewed from any angle, GO 212
would be wholly out of place for those working in the Nodal Centre which is
created and nurtured by the Central Government. It is not within the domain of
the State Government or even University to regulate the staff pattern or the
monetary benefits of the staff working therein, without the approval of Central
Government. Therefore, no directions should have been issued to the State
Government or to the University to regularize the services of respondents 1 to
5, if necessary, by creating additional posts.
The
next question is whether the Central Government i.e., Respondents 7 & 8,
should be directed to take steps to create posts with appropriate pay-scales in
the Nodal Centre for the purpose of absorbing respondents 1 to 5 on regular
basis, by reason of their longstanding service. It is pointed out by the
learned counsel for the respondent-employees that the Nodal Centre, though
conceived as a temporary scheme, has come to stay for nearly two decades by now
and its relevance is not lost in the present day context and the possibility of
its disbandment is remote. The learned counsel therefore contends that there is
every justification for absorbing the concerned respondents on regular basis in
recognition of their long satisfactory service. The learned counsel further
contends that the adhoc arrangement to employ them on consolidated pay should
not go on forever. The contention of the learned counsel cannot be sustained
for more than one reason and we find no valid grounds to grant the relief of
regularization. There is nothing on record to show that the concerned employees
were appointed after following due procedure for selection. Apparently, they
were picked and chosen by the University authorities to cater to the exigencies
of work in the Nodal Centre. Secondly, having regard to the background in which
respondents 1 to 4 were drafted to perform the job assigned to them, it is
difficult to concede to them the status of regular Government servants. As seen
earlier, the scheme envisaged the employment of senior Engineering students
during vacation periods and for payment of remuneration for the work done by
them. As the students were not prepared to take up the work of investigation as
stated in the counter- affidavit filed in the High Court, the University
authorities thought of inducting respondents 1 to 4 to perform the job which
was expected to be done by the Post-Graduate students on part-time basis. The
appointment of respondents 1 to 4 was thought of only by way of substituting
them for the Engineering students who, in the normal course, would have taken
up the work pursuant to the scheme. The plea to regularize their services is
misconceived having regard to the background and circumstances in which
respondents 1 to 4 came to be appointed. As regards the 5th respondent, the
position is still worse. No post of Attender has been sanctioned under the
scheme.
However,
as seen from the counter-affidavit filed in the High Court, her salary was
being met out of the funds allocated for office expenditure.
Though
the plea of regularization in respect of any of the five respondents cannot be
countenanced, the respondent-employees should have a fair deal consistent with
the guarantee enshrined in Articles 21 and 14 of the Constitution. They should
not be made to work on meagre salary for years together. It would be unfair and
unreasonable to extract work from the employees who have been associated with
the Nodal Centre almost from its inception by paying them remuneration which,
by any objective standards, is grossly low.
The
Central Government itself has rightly realized the need to revise the
consolidated salary and accordingly enhanced the grant on that account on two
occasions. That revision was made more than six years back. It is high time
that another revision is made. It is therefore imperative that the concerned
Ministry of the Union of India should take expeditious steps to increase the
salary of Investigators viz., Respondents 1 to 4 working in the Nodal Centre in
Hyderabad.
In the
absence of details regarding the nature of work done by the said respondents
and the equivalence of the job done by them to the other posts prevailing in
the University or the Central Government institutions, we are not in a position
to give any direction based on the principle of 'equal pay for equal work'.
However, we consider it just and expedient to direct Respondent No.7 or 8, as
the case may be, to take an expeditious decision to increase the consolidated
salary that is being paid to respondents 1 to 4 to a reasonable level
commensurate with the work done by them and keeping in view the minimum salary
that is being paid to the personnel doing more or less similar job. As far as
the 5th respondent is concerned, though we refrain from giving similar
directions in view of the fact that the post is not specifically sanctioned
under the scheme, we would like to observe that the Central Government may
consider increasing the quantum of office expenditure suitably so that the
University will be able to disburse higher salary to the 5th respondent.
In the
result, we set aside the judgment of the High Court and allow the appeal
subject however to the directions given and observations made in this judgment.
No costs.
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