VERY IMPORTANT POINT
Sections 2 and 3(a) of A.P. Educational Service Untrained Teachers (Regulations of Services and Fixation of Pay) Act, 1991 in so far as they purport to take away the rights from 10-2-1967 and obligates those who had them to repay or restore it back to the State is hereby struck down as arbitrary, unreasonable and expropriatory and as such is violative of Articles 14 and 16 of the Constitution of India. The prospective exercise of powers thereunder is, however, not unconstitutional.

Headnote:Andhra Pradesh Educational Service Untrained Teachers (Regulations of Services and Fixation of Pay) Act, 1991-Sections 2 and 3-Constitutional validity-Whether these sections in question brought into force with retrospective effect from 10-2-1967 take away the vested rights of the appellants and consequently suffer the vice of hostile discrimination, arbitrariness and expropriation of vested rights and are liable to be struck down as violative of Articles 14 and 16 of the Constitution of India? (Yes)-Case law discussed-Whether appellants are also entitled to benefits under the automatic advancement scheme formulated under GOMS No. 164 dated 1-6-62? (No)-Result-Appeals partly allowed.
       Held (After case law) : On a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent-State that the rights derived and claimed by the appellants must be under any statutory enactment or rules made under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which crept in and deserved to undone, does not merit our acceptance. It is by now well settled that in the absence of Rules under Article 309 of the Constitution in respect of a particular area, aspect or subject, it was permissible for the State to make provisions in exercise of its executive powers under Article 162 which is co-extensive with its Legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. The orders passed by the Government, from time to time beginning from February 1967 till 1985 and at any rate upto the passing of the Act, to meet the administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force and effect. The orders of the High Court as well as the Tribunal also recognised and upheld such rights and those orders attained finality without being further challenged by the Government, in the manner known to law. Such rights, benefits and perquisites acquired by the Teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, with impunity. Consequently we are unable to agree that the Legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation in futuro can not be held valid in so far as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Sections 2 and 3(a) insofar as they purport to take away the rights from 10-2-1967 and obligates those who had them to repay or restore it back to the State is hereby struck down as arbitrary, unreasonable and expropriatory and as such is violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application. (Para 14)
       But held : So far as the claim of benefits under the automatic advancement scheme formulated in GOMS No. 164, Finance and Planning Department, dated 1st June, 1982 is concerned we are unable to agree with the stand take for the appellants that any service rendered could entitle the appellants or the class of persons similarly placed, to claim the benefit of the automatic advancement scheme. It is well settled that a person holding a lesser grade of post can be made to be incharge of a higher post and be paid also the scales of pay permissible for the higher grade or category of post but that will not make the said person entitled to claim to be a regular member or incumbent of the post to claim consequential benefits for any advanced career or promotion as if he is a regular incumbent to the said post. Even any one of the appellant or the class of persons similarly situated when assert a claim for the benefits of the said scheme they will have to strictly comply with the requirement of the conditions stipulated therefor in the scheme and cannot by virtue of the services rendered in a post pursuant to the concession shown to appoint them in the higher category of posts with a limited purpose and object as the aim automatically become entitled to count such service for claiming the benefits under the special scheme. (Para 15)
       Held also : The provisions contained in Section 3 mandates that the supernumerary posts created in the B.Ed. Grade Rs. 130-250 pursuant to the orders noticed therein shall be deemed always to have been Secondary Grade Posts of teachers in the time scale of Rs. 80-150 with subsequent increases due to revision of pay scales from time to time, accordingly. The reasons assigned, supra would apply with equal force to invalidate this retrospective reclassification by a fiction to nullify the lawful rights acquired during the past period and justify only prospective application and accordingly read down, as in the case of Section 2 of the Act. In view of the conclusions arrived at on the eligibility or otherwise to claim the benefit of the automatic advancement scheme there is no need or warrant to interfere with the stipulations contained in Section 3 (c) and (d). In the light of and to the extent of relief granted to the appellants in this Judgment, Section 3(e) also cannot have any such force and effect to deprive the rights accrued to and acquired by the appellants and persons similarly placed. (Para 16)
       Held consequently : The appeals are partly allowed, accordingly. In the light of the above orders passed granting relief to all persons similarly placed as the appellants no further orders are necessary on the application for impleadment. (Paras 17,18)

JUDGMENT

C.A. Nos. 2652-54, 2655, 4680, 5318-19 of 1995 and 6963-6974, 7023 and 6975-7022 of 2002

Leave granted in special leave petition (C) Nos. 3699-3710, 7808 and 21533-21580 of 1995.

2. The above appeals have been filed against the common order of the Larger Bench of the Andhra Pradesh Administrative Tribunal at Hyderabad dated 27th April, 1994 in O.A. Nos. 50430-50441 of 1991 etc., whereunder by a majority, with the dissenting opinion recorded by the Chairman, the challenge to the constitutional validity of Sections 2 and 3 of the Andhra Pradesh Educational Service Untrained Teachers (Regulation of Services and Fixation of Pay) Act, 1991 (Act No. 14 of 1991) (hereinafter referred to as the Act ) came to be rejected.

3. The facts which lead to the passing of the said enactment, resulting in the order under challenge may briefly be stated for a proper appreciation of the contentions of the parties on either side. After the formation of the State of Andhra Pradesh the State Government framed a composite set of rules called Andhra Pradesh Educational Rules, 1966 in exercise of the executive powers available for the State. The Schools in the State for the purpose of those Rules were classified into three categories: Elementary Schools for classes 1st to 5th; Upper-Primary Schools for classes 6th and 7th and Secondary Schools for classes 8th, 9th and 10th. In several schools there were combined classes from elementary stage to secondary stage also, though in some schools classes upto upper-primary alone were conducted. For SSLC trained teachers (in short SGBT Teacher) the scale of pay at the time of introduction of 1966 Rules was Rs. 80-150. In the Telangana area earlier the scales were lower and classification was also said to be different. The scale of pay for a Graduate B.Ed. known as School Assistant was Rs. 130-250. In addition to the other academic qualification, the teachers training certificate or B.Ed. degree, was also an eligibility criteria for appointment as SGBT teacher or School Assistant, as the case may be, respectively.

4. In G.O.M.S. No. 910, Education dated 27th April, 1970, Statutory Rules were said to have been framed revising the scale of pay with effect from 19-3-1969 and the scale of pay of SGBT teacher were said to have been revised to Rs. 96-200. Likewise the scale of pay of a School Assistant was also revised to Rs. 150-300. But during the relevant point of time in the year 1967, the scale of pay of SGBT with Matriculation and Teachers Training Certificate was Rs. 80-150 and of the School Assistant with Graduation and B.Ed. degree was Rs. 150-250. Due to dearth of trained graduates in Science and Mathematics with Mulki qualification for appointment as teachers in Telangana area the Government in G.O. No. 257 Education dated 10-2-1967 accepting the proposals of the Director of Schools, Education, passed orders that untrained graduates in those subjects may also be appointed in the minimum pay of Rs. 130/- in the scale of pay of Rs. 130-250 with usual allowances admissible for a trained graduate teacher for a period of two years from the date of the said order. Keeping in view the fact that previously and at the time of issuance of the said Government Order such untrained graduates, untrained intermediates and matriculates who were being appointed only on a pay of Rs. 100/- in the scale of pay of Rs. 80-150, the Government issued G.O. 2069 Education dated 9.10.1967 that untrained teachers in any part of the State may be appointed at the minimum of the scale applicable and they will not be eligible to draw any increments in the scale till they acquire the necessary qualification prescribed for the post. Since the Government Order dated 10-2-1967 was with reference to the appointment of untrained graduates at the minimum scale of Pay of Rs. 130-250 with usual allowances in respect of Science and Mathematics subjects only the untrained graduates appointed to teach the subject of Humanity were not paid at the

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2002 Supreme(SC) 1056

Cases Referred (3)