IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT

HYDERABAD

Writ Petition No…………. of 2011.

Petitioner

Sri A. Subbarama Gopal, S/o A. Adaiah,

Chief Administrative Officer (Retired),
Department of Archaeology & Museums,
R/o. Flat no. 105, Plot No. 19,
Gangotri Apts,
Huda Complex, Saroornagar P.O.,
Hyderabad 500 035 (Present Address)

Vs.

Respondent(s)

1. The Government of Andhra Pradesh,

Represented by its Secretary, Youth Advancement Tourism &
Culture (T) Department, Secretariat Buildings,
Hyderabad.

2. The Director,
Department of Archaeology & Museums,
Hyderabad.

(Writ Petition under Article 226 of the Constitution of India – Violation of

Principles of Natural Justice)

AFFIDAVIT OF THE PETITIONER HEREIN

I, A. Subbarama Gopal, (hereinafter referred to as ‘Applicant’) S/o., A. Adaiah, aged 77

years, resident of Hyderabad do hereby solemnly and sincerely affirm and state on oath
as follows:

1. I am Retired Chief Administrative Officer, Department of Archaeology & Museums,

Applicant in the O.A. No. 3389 of 2007 (Exhibit P-3) of Andhra Pradesh Administrative
Tribunal and as such I am well acquainted with the facts of the case.

2. I have filed the above-said Original application with Andhra Pradesh Administrative
Tribunal aggrieved by the proc. Memo. No.148170/A3/2005-1 dt.19-05-2006 of the Ist
respondent and the said memo received by me during August, 2006 therein rejecting
my request to appoint in Special Grade post of Chief Administrative Officer, on
completion of 10 years of continuous (stagnation period) period in the next higher scale.

3. I was originally appointed as L.D.C. on 28-05-1953 and basing on my eligibility,

suitability further promoted to U D C on 21-04-1956 and Superintendent w.e.f. 19-08-
1960 as Assistant Director with effect from 19-10-1967 and Chief Administrative Officer
w.e.f. 12-02-1979 and retired in that capacity on attaining the age of superannuation
w.e.f 31-08-1991.

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4. Such was the position, the Government of Andhra Pradesh have introduced an
Automatic Advancement Scheme (A.A.O.) through G.O. Ms.No.117 Fin. & Plg (F W
PRC-1) Department dt.25-05-1981 (Exhibit P-1). According to said G.O., every
employee after serving in continuous service of particular scale without promotion shall
be eligible for next higher scale. These scheme of posts are called “Special Grade
Posts”. Said scheme was implemented w.e.f.01-04-1981. The main aim and intention
of introducing the above scheme is to relieve stagnation in service due to lack of
promotion. In this, it is further submitted that eventhough I put up more than 10 years of
service in the category of Assistant Director in the scale of pay of Rs.1050-1600 (RPS
1978) the respondents have not considered my claim of Special Grade Post of Assistant
Director even though I fulfilled the above condition of 10 years of service in that cadre,
like wise, I had completed 10 years of service in the cadre of Chief Administrative Officer
in the scale of pay of Rs.1250-1800 (RPS 1978). The respondent had not appointed me
in the Special Grade Post of Chief Administrative Officer even though I fulfilled the
requisite condition of completing 10 years of service in that post and stagnated without
any further promotion. In this regard I submit that in the similar set of circumstances in
Medical and Health Department and certain other departments the said benefit was not
given in the beginning, but when the employees of department requested the
government to extend the benefit of Special Grade Post, Government agreed and made
them eligible and extended the benefit.

5. It is further submitted that according to the scheme appended to the G.O.Ms.117 F &
P (FWPRC.I) Department dt.25-05-1981 every employee after a service of 10 years in a
particular scale shall be eligible for the next higher scales referred to corresponding to
the existing relevant scales as shown in Annexure 1 to the Appendix. These orders shall
apply to those who draw pay in the Revised pay scales, 1978 upto and including grade
XVII in Schedule 1 to the A.P. Revised scales of pay rules, 1979. Government have
further extended the scheme to the Civil Assistant Surgeons who are in the scale of pay
of Rs.900-1500 i.e., Grade XVIII in Schedule 1 to the A P R S of Pay Rules 1979, vide
its G.O.Ms. No.27 Fin & Plg (Fin Wing PRC-1) Dept. Dt.31-01-1983 (Exhibit P-2). These
orders were given after nearly two years and ordered that these orders will be given
effect from 01-04-1981.

6. It is respectfully submitted that I put in 11 years of service (from 29-10-1967 to 11-02-

1979) in the category of Assistant Director (Admn.) and 12 years of service (from 12-02-
1979 to 31-08-1991) in the category of Chief Administrative Officer. The AAS came into
effect w.e.f. 01-04-1981. The post of Chief Administrative Officer was a solitary post and
it has no promotional chances to higher post in the department. I requested the
Respondent no.1 through representation dated 24-09-1990 to appoint me in the Special
Grade post of Chief Administrative Officer. The Director, Archaeology & Museums
(Respondent no.2) have forwarded my representation to Respondent 1 with a request to
consider my request favourably. But the Respondent no.1 through its Memo.No.1418
A&M-2/9-2 Education department dated 30-01-1991 informed the Respondent no.2 as
follows:

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 “The scheme of Automatic Advancement (AAS) is applicable to those employees
Who draw pay in the RPS, 1986 up to Rs.2150-3690 (Grade XVIII). As the
Incumbent is drawing pay in Grade XX in the Scale of Rs.2410-4050 in the cate-
gory of C.A.O., it is not possible to extend the AAS to Grade XX. The request of
the Director A&M is therefore negatived”.

7. The benefit of AAS was given to Grade I to XVII only in the G.O.Ms.No.117 dated 25-
05-1981 (Exhibit P-1) at the first instance. The same was extended to Grade XVIII in
G.O.Ms.No.27 dated 31-01-1983 based on the representations made by Medical
Department and also made effective from 01-04-1981. Therefore it is clear that there is
no hard and fast rule that the benefit of AAS should only be given to Grade I to XVII or
XVIII.

8. I submitted representations to the Government on 24-09-1990, 18-03-1994, 31-10-

1995, 22-02-2002, 24-11-2005, 05-12-2005 & 29-12-2005 duly bringing to the notice of
respondents injustice done to me for not appointing me in the Special Grade Posts of
Assistant Director and Chief Administrative Officer though I am eligible for it.

9. It is with this background that I have filed a Original Application no.3389/2007

aggrieved by the proc. Memo. No.148170/A3/2005-1 dt.19-05-2006 of the Ist respondent
and the said memo received by me during August, 2006 therein rejecting my request to
appoint in Special Grade post of Chief Administrative Officer, on completion of 10 years
of continuous (stagnation period) period in the next higher scale.

10. After I have filed the Original application on 20-06-2007, it took three years for the
respondents to file the Counter affidavit (Exhibit P-4) for the O.A. filed on 20-06-2007.
The respondents filed their Counter affidavit on 27-04-2010 for which I have filed my
Reply to that counter affidavit (Exhibit P-5) immediately after they filed the Counter
affidavit. The Hon’ble Andhra Pradesh Administrative Tribunal was pleased to give an
Order (Exhibit P-6) in my favor giving suitable directions to the Respondents to respond
favorably to my request to appoint me Special Grade 23-July-2010. I was present in
Courtroom when the judgment was dictated orally by the Presiding Officer, the Counsel
for the respondents was asked if there are any arguments against the reply for the
Counter affidavit filed by me. The counsel for the respondents did not file any written
affidavit for the reply filed by me, however expressed orally that it involves expenditure
for State Government (Respondent no.1). The Presiding Officer, not satisfied with that
argument had given a judgment in my favor on 23-July-2010.

11. I have been running for justice from pillar to post for the past 21 years ever since I
moved my first application to consider me for Special Grade post in 1990. By the time I
had filed my Original Application (3389 of 2007 with APAT), already 17 years time was
spent by government without issuing orders in my favor. Ultimately when I filed Original
Application with Hon’ble APAT, it took another 3 years for Government of A.P.
(Respondent no.1) to file Counter Affidavit. And finally when I filed my reply to Counter

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Affidavit, the government had nothing to offer in terms of any reason/excuse to deny
Special Grade Post for me, as a result the Hon’ble Tribunal ruled in my favor.

12. Now the position is such that, even after the Hon’ble Tribunal ruled in my favor, the
Government of Andhra Pradesh (Respondent no.1) has been delaying issuance of
orders in my favor since the date of order by the Hon’ble Tribunal i.e., 23-July-2010,
which means the Respondent no.1 is keeping the file with him without deciding anything
in my favor even after a lapse of 7 months since the Hon’ble Tribunal had decided the
case in my favor on 23-July-2010. And I have no hope that I will get any justice from
Respondent no.1, even when the Hon’ble Tribunal had given orders in my favor without
the intervention of Hon’ble High Court.

13. In the Reply to the Counter Affidavit (Exhibit P-5), I had clearly spelled out the
circumstances under which I had filed the Original Application and the time spent by
government without issuing suitable orders in my favor by the time I filed my Original
Application. In that reply to Counter Affidavit I had pleaded the Hon’ble Tribunal to
award damages of Rs.15.00 lacs (in words: Rupees Fifteen Lakhs) for the inordinate
delay due to statutory negligence by Respondents in filing the Counter affidavit to
Original application which culminated in overall delay of about 20 years in delivering
justice (since date of my first representation i.e., 24-09-1990 made to Respondent no.1
to date of filing of counter affidavit by Respondents i.e, 27-04-2010). However the
Hon’ble Tribunal had totally overlooked that part of my Reply to Counter affidavit which
relates to claim and reasons for seeking damages and the prayer relating to it. The
Hon’ble Tribunal neither said anything in its favor, nor denied it clearly appears from the
Order of Hon’ble Tribunal that it had simply overlooked that aspect, which is in violation
of Principles of Natural Justice.

Grounds for relief(s)

1. At the outset, the kind attention of the Hon’ble High Court is drawn towards Rule
no.12 of Andhra Pradesh Administrative Tribunal Rules, 1989 which says:

(1) Each respondent intending to contest the application, shall file in triplicate the

reply to the application and the documents relied upon in paper book form with
the Registry within one month of the service of notice of the application on him.

(2) In the reply filed under sub-rule (1), the respondent shall specifically
admit, deny or explain the facts stated by the applicant in his application and may
also state such additional facts as may be found necessary for the just decision of
the case. It shall be signed and verified as a written statement by the
respondent or any other person duly authorized by him in writing in the same
manner provided for in Order VI, Rule 15 of the Code of Civil Procedure, 1908 (5 of
1908).

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 (3) The documents referred to in sub-rule (2) shall also be filed along with the reply
and the same shall be marked as R-l, R-3 and so on.

(4) The respondent shall also serve a copy of the reply along with documents as
mentioned in sub-rule (1) on the applicant or his legal practitioner, if any, and file
proof of such service in the Registry.

(5) The Tribunal may allow filing of the reply after the expiry of the prescribed period.

2. It is respectfully submitted that I was about 77 years old when I made the Reply to
Counter affidavit filed by the respondents. In view of the old age of the applicant, and
keeping in view, the common axiom ‘justice delayed is justice denied’, the respondent
should have filed the counter affidavit within one month from the service of notice on
him by the Hon’ble Tribunal. However, as it is clearly evident from the facts of the
case, the respondent took almost 3 years time to file the reply. The date of filing of
O.A. is 20-06-2007 and reply for it in the form of Counter affidavit was filed by
Respondents on 27-04-2010.

Though sub-Rule (5) of Rule 12 says, “The Tribunal may allow filing of the reply after
the expiry of the prescribed period”, a period of 3 years shall be construed as “in
ordinate delay” in the life of a Senior Citizen who is about 77 years of age.

3. According to Rule 18 of the APAT Rules, 1989, the Tribunal is empowered to make
an order exparte without hearing the case of the respondent. However when an
exparte order is passed against the respondent under Rule 18, if there are valid
reasons like, the notice was not duly served, or that he or they were prevented by any
sufficient cause from appearing when the application was called for hearing the
Tribunal may make an order setting aside the ex-parte hearing as against him or them
upon such terms as it thinks fit, and shall appoint a day for proceeding with the
application.

4. In my case, there is no reason why the respondent should have avoided filing of
reply other than ‘willful negligence’. It should be in the know of Respondent no.1 that
not filing a reply to the Application filed by an old man who is as old as 74 years (at the
time of filing O.A.) will lead to inordinate delay in delivering justice to him. When a
notice of one month is given to the respondents, unless the Tribunal in exercise of
powers under Rule 12 (5) gives time to file reply after prescribed period, the
respondents should file it with in time prescribed by Tribunal as per Rule 12 (1) of APAT
Rules. It is a statutory duty to file reply with in time, the negligence in performing such
‘statutory duty’ amounts to ‘statutory negligence’.

5. In the case of Gaekwar Sarkar of Baroda V. Gandhi Kachra Bai, (1903) ILR 27 Bom
344 (PC and East Fremantle Corporation Vs. Annois, (1902) AC 213 : 85 LT 732 : 18
TLR 199 it is held:

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 If things authorized by a statute are carelessly or negligently done an action is
maintainable. Such a breach is known as Statutory negligence.

6. Pleading ignorance is of no avail because the respondents are duly served with
notice by the Tribunal, and there is no sufficient cause attributed by them, even in the
counter affidavit filed by them dated, 27 th of April, 2010 for the delay in filing Counter
Affidavit. As such ignorance of law is no excuse. Being an old person whose life has
no guarantee in terms of health, I cannot be held in this trauma of the legal
proceedings for the fault of the respondents failing to file the counter affidavit in time
prescribed by Tribunal. Delay up to 4 times of the prescribed period (of one month in
sub rule (1) of Rule 12) is understandable. Even one year is understandable. But if
the respondents delays the filing of counter affidavit up to 3 years (near about), and
after Hon’ble Tribunal gave its verdict in my favor, again delays implementation of
Tribunal’s orders by over 7 months, it clearly implies that they do not have interest to
see that the Applicant gets justice.

7. Moreover it is in the know of respondent no 1 & 2 that I have been fighting for
justice in the same matter since 1990 while I was in service and also after attainment
of superannuation representing my case to Government (respondent no.1). All in all, a
period of 16 years has elapsed in my retired life before I knocked the doors of Hon’ble
Tribunal in 2007. Being fully aware of this fact, the respondent took, over that period
of 16 years, near about 3 years (20-06-2007 – date of filing of O.A. to 27-04-2010 –
date of counter affidavit of the respondents) to file his counter affidavit to O.A. filed by
me. After that, after Hon’ble Tribunal issued Order in my favor, dt.23-July-2010, again
the Respondent no.1 delayed implementation of the Hon’ble Tribunal’s order for over 7
months. There is no reason why such negligence on the part of respondents should
not be classified as a tort or civil wrong causing injury to the Applicant (myself in the
said case) who waited about 19 years after the date of superannuation to get justice.

Whatever be the case, and the reasons behind such negligence, this is a clear case of
statutory negligence which prima facie appears on the face of it just by reading the
time taken to file the counter affidavit by the respondents. Hence it shall be construed
as tort committed by the respondent against me.

8. The State is liable for the damages inflicted to the victims during the course of its
discharge of its duties and obligations. It is obligatory on the part of the respondents to
respond in time as per Rules of APAT, which obligation is not honored by the
respondents by reason of sheer willful negligence which can safely be classified as
‘statutory negligence’ because they are duty bound to file counter affidavit as per Rule
12 (1) of APAT Rules within one month and the cause of not filing counter affidavit
during these 3 years is not because the Tribunal had given time to file counter affidavit
beyond prescribed period, under Rule 12 (5).

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 Hence it is a tort for which I am eligible to claim damages for the mental agony caused
due to delay in getting justice for which neither me, nor the Hon’ble Tribunal, but only
the respondents are responsible or liable.

9. It is a different matter if the O.A. is dismissed against me in favor of Respondents.

But to keep me in the position of sitting fingers crossed, anxiously waiting for a
decision which may either go this way or that way for such a long period of time is
clear case of willful negligence by the respondents which can be classified as a tort for
which damages may be awarded to me because such anxious waiting in old age
causes mental agony. More importantly, even the Tribunal had finally ruled in my
favor conveying that the Government (Respondent no.1) had wronged in not
considering my request for Special Grade promotion through its Order dated 23-July-
2011. But what happens to all the agony that I had faced for these 21 years for not
getting justice directly from Government (Respondent no.1) in time when I had
originally approached in 1990? I had made 100s of visits to several places taking my
representations to Government and moving officials to grant orders in my favor as
there are precedents in granting Special Grade Promotion to other departments
eventhough they do not fall within the Grades initially announced by Government.
Further, I had to pursue the case with Advocates in Hon’ble Tribunal for over 3 years.
I have been pursuing with Officials of Government even after Hon’ble Tribunal passed
orders in my favor on 23-July-2010 for these seven months. Had the government
responded for my request when I first represented in 1990, all this agony that I faced
for these 21 years would have been avoided. Even now, the orders of Hon’ble
Tribunal have not been implemented.

10. I wish to state that subsequent to the introduction of AAS in 1981 the government
had extended the benefit of AAS up to Grade XXV complying with the
recommendations of various Pay Revision Commissions appointed thereafter till date.
However, by the time the government extended these benefits to employees up to
Grade XVII, I was in the higher grade and by the time the government further extended
the Grades up to XXV, I was retired. So I did not get the benefit of AAS for which I
quoted the rulings of Supreme Court in my reply to Counter affidavit, inter alia, as
under quoting violation of Article 39 of Constitution of India:

With regard to the averments made by the respondents in Para 4 to 8, the Applicant
respectfully submits that AAS was eventually extended up to Grade XXI as is evident
from the G.O.(P) No.162 dt. 20-05-1993 (Annexure No.1) issued with regard to the
Revision of payscales – Recommendations of Pay Revision Commissioner, 1993. In
the Schedule III of the G.O. it may be noticed the benefit of AAS was extended up to
Grade XXI. And subsequently, it was extended up to Grade XXV as per latest PRC
recommendations.

In G.O. Ms. No. 93 Dated : 03-04-2010, Para 2 (6) of the Order the Government
(respondent no.1) states:

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The benefit of Automatic Advancement Scheme be extended up to and inclusive of
Grade-XXV in the revised scales i.e., Rs.25,600 – Rs. 50,560. (As per Latest PRC
recommendations).

Thus it is very clear, the Government (respondent no.1) extended the AAS subsequently
to all the grades up to and inclusive of XXV, beyond Grade XVIII which was cut off grade
mentioned by the respondents in the instant case which makes the Applicant ineligible
for the Special grade post under AAS with the reason that the Applicant has crossed the
limit of Grade – XVIII (i.e.) scale of pay Rs.900-1500 as on date of completion of service
both in the posts of Assistant Director (A) and Chief Administrative Officer in Revised
Pay Scales, 1978.

This in effect means that the work put in by the old employees belonging to Grade XIX to
XXV who were rejected the benefits of AAS and the work put in by the new employees
belonging to Grade XIX to XXV for whom the benefit of AAS was extended by
subsequent G.O.s is same and thus, applying the doctrine of “equal pay for equal work”
the respondents had violated the provisions of Article 39 (d) of the Constitution of India,
which is one of the Directive Principles of State Policy.

Article 39 Certain principles of policy to be followed by the State

(d) that there is equal pay for equal work for both men and women;

Extension of benefits under AAS up to a Grade of XXV in subsequent G.O.s of

Government (respondent no.1) indicates that keeping in view the principle of purposive
interpretation, the Government was in the right direction of extending the benefit of AAS
to Grades, even beyond Grade XVIII. That being the case, omitting a few employees
like the applicant with the only difference of “time factor” (The applicant and his
generation of employees belonged to earlier period), and extending the same benefits
that were denied to applicant to the subsequent appointees (new employees) is clearly
discriminatory and violative of principles enshrined in Articles 14, 16 (1) & 39 (d) of
Constitution of India.

Like a judicial order, even an administrative order must be a speaking order, it shall
enumerate the reasons as to why a certain class of employees of one period have been
omitted for receiving the benefits under a certain scheme which were extended to same
class of employees of a different period.

Though the Applicant worked for a different period, the nature and amount of work and
the duties & responsibilities involved for the period the Applicant & his generation of
employees worked under various Departments and for the present period is same. If
there is any additional workload for new employees of Grades XIX to XXV by virtue of
which they are made eligible for AAS, the government could have narrated it as reason
for rejection of extension of AAS to old employees such as Applicant. No such reason
other than pecuniary loss, inability to relax rules as this being an isolated case and not
meeting the eligibility criterion of G.O.s issued was attributed by government

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(respondent no.1) for rejecting the extension of benefits under AAS to Applicant in all
their replies to the representations of Applicant in this matter.

The Government (respondent no.1) ought not to have made discrimination between the
old employees and new employees by denying the same benefits extended to the new
employees to the old employees. It is not the case that old employees have put in lesser
amount of work and new employees to whom the benefits of AAS have been extended
up to Grade XXV have put in some extra amount of work for the Government
(respondent no.1) to maintain this disparity between these two groups of employees
belonging to different periods. Extension of benefits under AAS to Grade XXV without
extending the same to Applicant and his generation of employees gives rise to a
situation of “unequal pay to equal work”, which is clearly violative of Article 39 (d) of
Constitution.

The Hon’ble Supreme Court stressing the importance of doctrine of “Equal pay for equal
work” held in the following cases:

(a) In Randhir Singh v. Union of India (1982-I-LLJ 344) the complaint of the petitioner, a
Driver-Constable in Delhi Administration, was his scale-of-pay was lesser than that of
the Drivers working in the Railway Protection Force, non-Secretariat Offices in Delhi, etc.
The Supreme Court observing that the principle, 'equal pay for equal work' as enshrined
in Articles 14, 16 & 39(d) of the Constitution applies to cases of unequal scales of pay for
those doing identical work under the same employer, directed fixation of the scale of pay
of the petitioner therein on par with the Drivers of the Railway Protection Force.

(b) In P. K. Ramachandra Iyer v. Union of India (1984-I-LLJ-314) there was a revision of

pay-scales of the Professor - petitioners therein, but the revised scales were not given to
them. On the other hand, fresh recruitment was resorted to and the revised scales were
given to the fresh recruits. While laying down the scope of Article 39(d) read with Articles
14 and 16 the Supreme Court observed at page 325 :

"The case on hand is a glaring example of discriminatory treatment accorded to old,

experienced and highly qualified hands with an evil eye and unequal hand and the
guarantee of equality in all its pervasive character must enable this Court to remove
discrimination and to restore fair play in action." Accordingly, mandumus was issued in
favour of the petitioner - professors therein.

(c) In P. Savita v. Union of India (1986-I-LLJ-79) the 3rd Pay Commission recommended
classification of 'the Senior Draughtsmen' in the Defence Department into two groups.
This adversely affected the emoluments of the petitioner group of Draughtsmen. The
Supreme Court holding that the classification is violative of Art. 14 directed fixation of
scale of pay of the petitioner group of Draughtsmen on par with that of the other group.

(d) In Dhirendra Chamoli v. State of U. P. (1986-I-LLJ-134) and Karan Singh v. State of J

& K the petitioner casual workmen sought for the same salary as is paid to the regular

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employees doing the same work. The Supreme Court observing that casual workmen
cannot be denied the same salary and conditions of service of regularly employed Class
IV employees when they perform the same duties as such Class IV employees do,
allowed those two writ petitions.

In these five decisions of the Supreme Court the question arose was with reference to
the doctrine 'equal pay for equal work' under Article 39(d) of the Constitution. Even in
the Applicant’s case, the Applicant though belonging to higher grades at the time the
Government (respondent no.1) extended the benefit of AAS to grades lower than his
grade (the applicant was in the category of above Grade XVIII because of which he was
denied the benefits under AAS by Government), did not do lesser work than the
employees presently falling in grades XIX to XXV that were subsequently extended the
benefits of AAS. Hence the doctrine of “equal pay for equal work” perfectly applies to
his case in the sense that the present employees belonging to Grades XIX to XXV enjoy
salaries attached to Special Grade Posts for same amount of work that the Applicant
had put in in the Grades higher than XVIII while he was in service.

The Supreme Court in Randhir Singh v. Union of India & Ors., [1982] 3 S.C.R. 298 had
to deal with the case of a driver constable in the Delhi Police Force under the Delhi
Administration. The scale of pay in the Delhi Police Force was for non-matriculate
drivers Rs.210-70 and for matriculate drivers Rs.225-308.

The scale of pay of a driver in the Railway Protection Force was Rs.260-400. The scale
of pay of drivers in the non-secretariat offices in Delhi was Rs.260-6-326-EB-8-350,
while that of Secretariat offices in Delhi was Rs.260-6-290-EB-6-326-8-366-EB-8-8-8-
390-10-400. The scale of pay of drivers in the office of the Language Commission was
Rs.260-300 while the drivers of heavy vehicles in the Fire Brigade and the Department
of Light House was Rs.330-480.

The petitioner and other driver constables made a representation to the authorities that
their case was omitted to be considered separately by the Third Pay Commission and
that their pay scales should be the same as the drivers of heavy vehicles in other
departments. As their claims for better scales of pay did not meet with success, the said
application was filed by the petitioner for the issue of a write under Art.32 of the
Constitution. It was allowed by the Supreme Court.

His Lordship Chinnappa Reddy, J. speaking for a Bench of three learned judges of this
Court reiterated the following principles:

"(a) 'Equal pay for equal work' is not a mere demagogic slogan but a constitutional goal
capable of attainment through constitutional remedies, by the enforcement of
constitutional rights (under Article 32 of the Constitution of India). (b)The stand (of the
Government of India) that the circumstance that persons belonging to different
departments of the Government is itself a sufficient circumstance to justify different

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scales of pay irrespective of the identity of their powers, duties and responsibilities, is
unacceptable and untenable.

(c) While equation of posts and equation of pay are matters primarily for the Executive
Government and expert bodies like the Pay Commission and not for the Courts, where
all things are equal i.e. where all relevant considerations are the same, persons holding
identical posts may not be treated differentially in the matter of their pay merely because
they belong to different departments.

(d) The principle of equal pay for equal work is not an abstract doctrine when applied to
Government servants performing similar functions and having identical powers, duties
and responsibilities.

(e) As matter of interpretation, the Directive Principles, e.g. Article 39(d) of the
Constitution, have to be and have been read into the Fundamental Rights, e.g. Articles
14 and 16 of the Constitution. So read, the principle of equal pay for equal work, though
not expressly declared by our Constitution to be a fundamental right, is a constitutional
goal. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), the
principle of 'equal pay for equal work' is deducible from those Articles and may be
properly applied to cases of unequal scales of pay based on no classification or irrational
classification though those drawing the different scales of pay do identical work under
the same employer."

Falling in line with the above decisions of Hon’ble Supreme Court and keeping in view
the principle of purposive interpretation, the Government (respondent no.1) should have
extended the benefit of AAS to employees of all periods instead of restricting such
benefits to a class of employees and rejecting the same to same class of employees of
earlier period, though the scheme was in operation since 1981. Hence it is very clear
that Article 39 of Constitution of India was violated by Respondent no.1 in not extending
the benefit of AAS to me. However, it is extremely disheartening and agonizing to note
that the Respondents, neither having sufficient reason to deny my request to appoint me
in Special Grade, simultaneously violating the Spirit of Constitution have been able to
delay justice to me for about 21 years despite being directed by Hon’ble Tribunal to
decide the case in my favor and set aside their orders which led me to file an O.A. with
Hon’ble Tribunal.

11. In C.B. Aggarwal v. P. Krishna Kapoor, it was held that when legal process is
abused, it results in a tort. It was observed :

“It (The legal process) is abused when it is diverted from its true course so as to serve
extortion or oppression, or to exert pressure so as to achieve an improper end. When it
is so abused, it is a tort.” (AIR 1995 Delhi 154)

The Supreme Court Judge, SAHAI J. observed: "Truly speaking entire law of torts is
founded and structured on morality that no one has a right to injure or harm other

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intentionally or even innocently. Therefore it would be primitive to class strictly or
close finally the ever-expanding and growing horizon of tortuous liability”.

The law of torts is fashioned as “an instrument for making people adhere to standards of
reasonable behaviour and respect the rights and interests of one another. – violation of
protected interests of a person – remedy by giving him compensation – By “ interest “ here is
meant “ a claim, want or desire of a human being or group of human beings which the human
being or group of human beings seek to satisfy, and of which therefore , the ordering of human
relations in civilized society must take account. “

A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal
duty. Some legal rights are absolute in the sense that mere violation of them leads to the
presumption of damage. – An act which infringes a legal right is a wrongful act.

To constitute a tort or civil injury (1) there must be a wrongful act committed by a person (2) the
wrongful act must give rise to legal damage or actual damage and (3) the wrongful act must be
of such a nature as to give rise to a legal remedy in the form of an action for damages. – The
crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of
another. (Text in Italics: Extract from www.drtsolutions.com)

It is a legal right conferred by the Administrative Tribunals Act, 1985 on the Applicant to
seek justice from the Hon’ble Tribunal. The conclusion of legal proceedings rendered
by such legal right may give a decision in favor of the Applicant. It is with this
expectation the Applicant files the Application with the Tribunal exercising his right to
legal action under Administrative Tribunals Act. If in the first place, if the delivery of
justice itself is made to suffer because of statutory negligence to file the counter affidavit
it cannot be treated as delay caused in the course of administration of justice delivery by
the Tribunal, but as delay caused due to negligence of the respondents who have a legal
duty to perform to uphold the legal rights of the Applicant to get justice in time. The
decision may or may not go in favor of the Applicant, whatever be the case, whether the
verdict goes this way or that way, upholding the legal rights of the Applicant by
performing the corresponding legal duties shall be the foremost concern of the
respondents. The decision going this way or that way has nothing to do with the
statutory obligation to perform such legal duties. If such legal duty is performed, whether
the Applicant’s suit is allowed or dismissed, he would have lived in peace for rest of the
period being in the know that the case is over.

If such legal duty is not performed or negligently performed, it leads to violation of legal
rights of the Applicant in the sense that as long as the case drags on the Applicant is put
to the mental agony of keeping his fingers crossed till the decision is made by the
Tribunal. Even if the decision goes against the Applicant if the justice is delivered in one
year time, then he can relax without having to keep his fingers crossed or without having
to work on the legal proceedings. That is a kind of torture for a Senior citizen to keep his
fingers crossed about the possible verdict for as many years as the respondents delay
and to keep an eye on legal proceedings and follow through. It may also be said that if
the decision goes in favor of the applicant, then he is denied the opportunity to enjoy the
benefits accruing out of that decision when his body and health permits. That does not

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mean there is no damage if the decision does not go in favor of the applicant in the
sense that it all involves a great deal of mental agony to keep waiting for about 20 years
fighting for justice both in the corridors of government and courts. Keeping that in view
the respondents should have filed the counter affidavit in time but they did not do so.
Hence this statutory negligence must be treated as a tort or civil injury whether the
decision of the Hon’ble Tribunal in the subject matter was to go in favor of the applicant
or not.

12. In the case of State of Rajasthan Vs. Vidyawathi, A.I.R. 1962 SC 933, the Supreme
Court observed:

“In this connection it has to be remembered that under the Constitution, we have
established a welfare state, whose functions are not confined only to maintaining laws
and order, but extend to engaging in all activities including industry, public transport,
State trading to name only a few of them. In so far as the State activities have such
wide ramifications involving not only the use of sovereign powers but also its powers as
employers in so many public sectors, it is too much to claim that the State should be
immune from the consequences of tortuous acts of its employees committed in the
course of their employment as such”.

Whether the respondent owes a duty to the applicant or not depends on reasonable
foreseeability of the injury to the applicant. If at the time of act or omission, the
respondent could reasonably foresee injury to the applicant, he owes a duty to prevent
that injury and failure to do that makes him liable. Duty to take care is the duty to avoid
doing or omitting to do anything, the doing or omitting to do which may have as its
reasonable and probable consequence injury to others, and the duty is owed to those to
whom injury may reasonably and probably be anticipated if the duty is not observed.
(Bourhill Vs. Young, (1943) A.C. 92, at 104, per Lord Macmillan)

To decide culpability, we have to determine what a reasonable man would have

foreseen and thus form an idea of how he would have behaved under the
circumstances. (Veeran Vs. Krishnamoorthy, A.I.R. 1966 Ker. 172, 176)

13. The respondents must have foreseen that if they do not file the counter affidavit in
time, the inordinate delay in getting justice from court would cause loss of precious life
time for a Senior citizen above 70 years of age. The benefits that the Applicant may
enjoy if the Hon’ble Tribunal passes an order in his favor, can be enjoyed only if the age
permits him so. As the age of the Senior citizen increases, his ability to enjoy life
decreases. It is for this reason, the respondents should be more cautious in filing the
reply in time so that if the Hon’ble Tribunal passes verdict in his favor, he is in a position
to enjoy the benefit when the health and body of the Applicant permits him. The younger
the man is in age, the greater the permission granted by the health and body to enjoy
such benefits. There is no use if the applicant gets the benefits when his body is no
longer able to enjoy anything that he can buy out of those benefits.

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Thus clearly the respondents are fully aware, that the applicant is Senior Citizen and
hence they must, as reasonable persons, possess the foresight that if they are negligent
in filing the counter affidavit in time, the applicant will be put to such disadvantage as
mentioned in the above paragraph. There is no guarantee of life even for persons of the
age of 60 years, there is no need to mention about the guarantee of life for a person of
the age of 77 years. Keeping that in view, I prayed the Hon’ble Tribunal in my Reply to
Counter Affidavit filed by the respondents, that the respondents should have filed the
counter affidavit in time, but they failed to do so, which act of negligence to perform a
legal duty clearly amounts to an act of tort for which they shall be made liable to pay
damages so that in future, this judgment of Hon’ble Tribunal acts as a precedent and
deterrent for any future omissions or negligence on the part of respondents with regard
to the cases relating to Senior Citizens.

14. I have prayed in my reply to Counter affidavit to Hon’ble Tribunal that the claim of
damages in this case is inextricably connected to the service matter of the Applicant
because if the Special Grade Post had been given to the Applicant in time he would
have enjoyed the benefits accruing out of it in time. But the Government (respondent
no.1) allowed the matter to drift along for about 20 years which includes about 19 years
of retired life of the Applicant which involves a huge loss for the Applicant both in terms
of health, ability to enjoy life and interest arising out of those monetary benefits if the
Special Grade Post had been given in time. The damages involved are in terms of
financial, physical and mental loss which is both measurable and immeasurable. Hence
the claim for damages is very much a part and parcel of ‘service matter’ as defined by
Section 3 (q) of the Administrative Tribunals Act, 1985 which can be tried by the Hon’ble
Tribunal along with Original Application. Section 3 (q) of the Administrative Tribunals
Act, 1985 says:

Section 3 (q) : "service matters", in relation to a person, means all matters relating to
the conditions of his service in connection with the affairs of the Union or of any State or
of any local or other authority within the territory of India or under the control of the
Government of India, or, as the case may be, of any corporation 1*[or society] owned or
controlled by the Government, as respects-- (i) remuneration (including allowances),
pension and other retirement benefits; (ii) tenure including confirmation, seniority,
promotion, reversion, premature retirement and superannuation; (iii) leave of any kind;
(iv) disciplinary matters; or (v) any other matter whatsoever;

The expression “Any other matter whatsoever” (in relation to service matters) in Section
3 (q) (v) brings in its ambit even the claim for damages, in the instant case they are
inextricably connected to the subject matter of the Application which is purely a service
matter and hence cannot be tried as an independent civil suit. Hence it is very much in
the jurisdiction of the Hon’ble Tribunal to put the claim of damages to Trial along with
Original Application and award these damages to the Applicant.

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On the above grounds interalia (as mentioned in O.A.), I prayed the Hon’ble Tribunal to
provide the following relief(s) in my Reply to Counter affidavit filed by Respondents in
Hon’ble Tribunal:

I. To award damages of Rs. 15.00 lacs (in words: Rs. Fifteen lacs only) for the
inordinate delay due to statutory negligence by respondents in filing the
counter affidavit which culminated in overall delay of about 20 years in doing
justice (since date of first representation i.e., 24-09-1990 made to respondent
no.1 to date of counter affidavit i.e., 27-04-2010 filed by the respondents) in
the matter to the Applicant by the Respondent no.1, whether are not the
decision in the contested matter goes in favor of the Applicant.
II. To pass such orders as the Hon’ble Tribunal deems fit to rectify the
anomalous situation created by Government Orders in relation to AAS issued
from time to time (from 1981 to till date) that led to discriminatory treatment
against old employees vis-à-vis new employees, passed by the respondent
no.1 which are unconstitutional.
III. To pass such other orders as Hon’ble Tribunal deems fit in the light of facts &
circumstances of the case.
IV. To dispose of the case as early as possible keeping in view the old age (and
the period, energy and efforts already spent) of the applicant which does not
permit him to take on the burden of legal proceedings.

However, the Hon’ble Tribunal, as is evident from the Order dated 23-July-2010 had
totally ignored my prayer and affidavit related to damages and had issued an order
favoring me only touching upon the aspect of appointment relating to Special Grade
Post, and that too is delayed by State Government (Respondent no.1) since the date of
Order till date. This is in clear violation of principles of natural justice (not hearing the
part related to damages and not saying anything on it in its Order dt.23-July-2010). I
wish to state that if the Respondent no.1 had implemented the orders of Hon’ble Tribunal
without delaying for over 7 months after the Order was made by Hon’ble Tribunal, I
would not have approached this Hon’ble Court bringing to its notice the delay of 21 years
by the Respondent no.1 in performing a duty that is legal and constitutional for it. That is
why I have not even applied for review of Order dt.23-July-2010 of Hon’ble Tribunal
having satisfied with the Order of Hon’ble Tribunal at least in relation to Special Grade
Post. However, when I had seen that the State Government is delaying implementing
even the Hon’ble Tribunal’s orders, I have no other way but to invoke the jurisdiction of
Hon’ble High Court under Article 226 so that Hon’ble High Court sets a deterrent for
State government in expediting cases relating to Senior Citizens pending in
Tribunal/expediting implementation of orders of Tribunals relating to Senior Citizens.
This is to say that this Writ is filed not only for violation of principles of natural justice by
Hon’ble Tribunal but also for the tort of continuing delay committed by Respondent no.1
for over 21 years, which continued even after the order made by Hon’ble Tribunal in my
favor.

It is also brought to the notice of this Hon’ble High Court that where it is established that
there has been gross violation of principles of natural justice, the existence of alternative

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remedy, if any, is not a bar for invoking jurisdiction under Article 226 of the Constitution
of India as is evident from judgments in the cases viz., Veerappa Pillai Vs. Raman &
Raman Ltd. (AIR 1952 SC 192); State of U.P. Vs. Mohd. Nooh, (1958 SCR 595);
Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, ( AIR 1969 SC 556).

Relief(s) prayed for:

Petitioner prays that this Honourable Court may be pleased to:

Award damages of Rs. 15.00 lacs (in words: Rs. Fifteen lacs only) for the inordinate
delay due to statutory negligence by respondents in filing the counter affidavit and then
implementing of Hon’ble Tribunal’s order dt.23-July-2010 which culminated in overall
delay of about 21 years in doing justice (since date of first representation i.e., 24-09-
1990 made to respondent no.1 to date of counter affidavit i.e., 27-04-2010 filed by the
respondents and from Date of Order of APAT in my favor i.e.23-July-2010 to till date) in
the matter to me by the Respondent no.1 and for not implementing the orders given by
Hon’ble Tribunal from 23-July-2010 to till date in my favor.

Interim Relief:

To direct the State Government (Respondent no.1) to immediately implement the orders
of Hon’ble Andhra Pradesh Administrative Tribunal Dated 23-July-2010 without further
delay.

Counsel for the Applicant Petitioner

Place : Hyderabad
Date: -April-2011

Verification

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 I, Shri A. Subba Rama Gopal, petitioner herein, do hereby verify that the
contents from paras 1 to 13 are correct and true to the best of my knowledge and
personal belief and no part of it is false and nothing material has been concealed
therein. Affirmed at Hyderabad on this ……Day of April 2011.
.

(Signature)
Petitioner

Place : Hyderabad
Date : - April - 2011

Exhibits

Sl. No. Particulars of the annexure

P-1. G.O.Ms.No.117, Finance and Planning (FW.PRC-I) Department, dated
25-5-1981
P-2. G.O. MS. No.27 Fin & Plg (Fin Wing PRC-1) Dept. Dt. 31-01-1983
P-3. Original Application 3389/2007
P-4. Counter Affidavit filed by Respondents to O.A.3389/2007
P-5. Reply to Counter Affidavit filed by Applicant
P-6. Copy of Order of Hon’ble Andhra Pradesh Administrative Tribunal

Counsel for Petitioner Petitioner

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