IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 OP.No. 20240 of 2000(H) ----------------------- PETITIONERS: ------------ 1.K.V.JOBY,SECTION OFFICER, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 2.SEBASTIAN MAXY.T.B.,SENIOR GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 3.RAJASEKHARAN.P.N.,SELECTION GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 4.S.N.RAMACHANDRA KAMATH, SELECTION GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 5.V.L.FULGENCE,SELECTION GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 6.ROY JAMES,FIRST GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 7.Y.ABDUL RAHIM SAIT,SECTION OFFICER, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 8.K.BHAGIALEKSHMY,SELECTION GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 9.ESMIE VICTORIA DIAS, SECTION OFFICER, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. 10.V.A.GEORGE, SELECTION GRADE ASSISTANT, OFFICE OF THE ADVOCATE GENERAL, KERALA, KOCHI. BY ADV. SRI.K.A.ABRAHAM SRI.BIJU MARTIN RESPONDENTS: ------------- 1.STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETIARIAT, THIRUVANANTHAPURAM. O.P.20240/00 2.THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM. 3.THE LAW SECRETARY TO GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI.K.K.RAVINDRANATH FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/07/2008 ALONGWITH WA NO.2890 OF 2002 & WA NO.886 OF 1992 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.20240/00 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS).NO.849/98/LEG.DATED 27.8.1998. EXT.P2: COPY OF THE JUDGMENT IN CMP.NO.318/94 IN W.A.886/92. EXT.P3: COPY OF THE G.O.MS.52/61/LAW DATED 4.8.1961. EXT.P4: COPY OF THE SLP FILED BY THE STATE BEFORE THE SUPREME COURT NO.12350/94. EXT.P5: COPY OF THE FAX MESSAGE SLP ©.NO.12350/94 DATED 19.9.1996. EXT.P6: COPY OF THE ORDER OF THE SUPREME COURT DATED 20.9.1996. EXT.P7: COPY OF THE MINUTES OF THE MEETING HELD ON 13.8.1997. EXT.P8: COPY OF THE JUDGMENT IN O.P.NO.6892/1998 DATED 29.10.1998. EXT.P9: COPY OF THE ORDER G.O.(MS).NO.1/2000/LEG TVM.DATED 1.1.2000. EXT.P10: COPY OF THE ORDER NO.G.O.(MS).363/2000/LAW TVM DATED 26.6.2000. EXT.P11: COPY OF THE G.O.(MS).NO.1009/91/LEG DATED 20.3.1995. EXT.P12: COPY OF THE G.O.(MS).NO.243/95/LEG DATED 20.3.1995. EXT.P13: DRAFT OF THE AGREED STATEMENT TO BE SUBMITTED TO THE SUPREME COURT IN THE SLP FORWARDED TO GOVT. ON 29.7.1995. EXT.P14: COPY OF THE FAX MESSAGE DATED 9.9.1998. EXT.P15: COPY OF THE G.O.(MS).NO.214/97/HOME DATED 27.8.1997. EXT.P16(A): COPY OF THE ORDER NO.G.O.(MS).294/2006/LEG DATED 8.3.2006. EXT.P17(A): COPY OF THE LETTER NO.13885/ACA2/2007/LEG DATED 20.8.2007. EXT.P18(A): COPY OF THE COMPARATIVE STATEMENT PETITION. /TRUE COPY P.A. TO JUDGE J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS ------------------------------------- Dated the 28th July, 2008 J U D G M E N T Koshy,J . In the writ appeal as well as in the original petition, main issue to be considered is whether the staff in the office of the Advocate General are entitled to overtime allowance on a par with the staff of the Legislature Secretariat. The prayer in O.P.No.20240/2000 is as follows: In these circumstances, it is humbly prayed that this Hon'ble Court may be pleased to call for the records leading to payment of overtime allowance to the staff in the Legislature Secretariat and in the office of the Advocate General and (i) to issue a writ of mandamus directing the respondents to issue orders for enhancement of overtime allowance of the W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 2 staff in the AG's office on a par with the rate that is being paid to the staff in the Legislature Secretariat as per Ext.P1 order at the rate of Rs.55/- per day and any further enhancement that may be made for time to time. (ii) to issue a writ of mandamus or any other writ order or direction commanding the 1st respondent to implement the decision in Ext.P7 enhancing the overtime allowance of the staff in the AG's office on a par with that is being paid to the staff in the Legislature Secretariat retrospectively with effect from 28.3.1994, the date on which this Hon'ble Court in Ext.P2 judgment directed to consider and properly refix the overtime allowance payable to the staff of the Advocate General's office and to pay arrears with effect from 28.3.1994. On the basis of the claim raised by the petitioner, Ext.P2 order was passed by the Division Bench of this Court in C.M.P.No.318/1994 in W.A.No.886/1992. When W.A.No.886/1992 and connected cases were posted, it was noticed that there were many defects. Even process was not served to send notice to the respondents. The Division Bench W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 3 noticed that there are considerable lapse on the part of the staff of the Advocate General's office. Therefore, Court ordered an enquiry and various orders were passed on the basis of the enquiry report. In C.M.P.No.318/1994 in W.A.No.886/1992, this Court passed the following directions: (1) The Advocate General will constitute an Inspectorate with an Addl.Advocate General or a Senior Govt.Pleader as head of such Inspectorate. They will bestow proper attention to the functioning of the court sections including follow up action in court files. (2) Government should take immediate action to prepare Office Manual for the office of the Advocate General. For this purpose Government may request the High Court to make available the services of a judicial officer. (3) immediate action has to be taken to improve the accommodation and other amenities in the office of the Advocate General. (4) Sufficient number of staff will have to be appointed in the office taking into account the existing workload, after conducting a proper study. (5) The statement in the report of the Chief Secretary that the staff doing overtime work in the Advocate General's office cannot be W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 4 treated on a par with the staff doing overtime work in the Legislature Secretariat, cannot be accepted. There are no reasons to deny to such staff in the Advocate General's office, the remuneration that is being paid to the staff who are doing overtime work in the Legislature Secretariat. It is stated in the objection that the Legislative Assembly will be in session for about 180 days in a year. The staff doing overtime work in that Secretariat is given Rs.35/- per day. The High Court is in session for about 210 days. The overtime work done by the Advocate General's office staff is not at all different from the overtime work that is being done by the Legislature Secretariat staff. Government will have to consider these aspects and properly refix the compensatory allowance payable to the staff in the Advocate General's office.” Later, even though the above writ appeal relating to salary of High School Assistants was disposed of on merit by the Division Bench, it was specifically mentioned that Ext.P2 proceedings will continue separately and independently as directions in Ext.P2 has nothing to do with the subject matter in that writ appeal. Against Ext.P2, an appeal was filed by the State before W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 5 the Honourable Supreme Court. While the matter was pending before the Honourable Supreme Court, matter was discussed with the Advocate General and the Government and a draft settlement arrived at. Ext.P7 Minutes shows that discussions were held in the Chamber of Minister (Food, Tourism and Law), wherein apart from the Minister, Additional Advocate General, Law Secretary, 16 representatives of the employees of the Advocate General's office also participated. Thereafter, improvement in the staff pattern was made on the basis of the above minutes. Rs.80/- overtime allowance paid at the time of passing Ext.P2 order was enhanced to Rs.200/- per month with effect from 9.1.1996 on the basis of Ext.P7 Minutes, Clause 3, request was made to the Finance Minister to enhance the fixation of overtime allowance and it was subsequently enhanced of Rs.400/- per month. It is also decided to constitute an Inspectorate with eight members for looking into the problems of the functioning of the Advocate General's Office. The matter was W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 6 informed to the Honourable Supreme Court. Considering all these aspects, Supreme Court passed Ext.P6 order, which is as follows: “In view of the Fax message received from the Advocate General by the learned counsel for the State of Kerala which we find from the paper book, nothing survives so far as this petition is concerned and it will be disposed of as such.” 2. Since proceedings in C.M.P.No.318/1994 which leads to Ext.P2 order was continuing, an interim order was passed in C.M.P.No.33940/2000 by a learned Single Judge of this Court and that was challenged in W.A.No.2890/2002. Various C.M.P.'s were filed in furtherance of the order in C.M.P.No.318/1994 in W.A.No.886/1992 as it was the starting point of an independent litigation. Since O.P.No.22040/2000 was filed for the main relief, disposal of the O.P. will dispose of all other appeals and petitions as the question to be decided in all these proceedings is W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 7 whether the employees in the office of the Advocate General are entitled to overtime allowance on a par with the staff of the Legislature Secretariat. It is not disputed that the staff pattern and salary are almost similar in Secretariat, PSC and Advocate General's office. This is further evident from the Government orders on the subject. But in Secretariat and PSC, employees are not paid overtime wages. It is the contention of the Government Pleader that in view of the draft settlement mentioned in the orders in the S.L.P., the order in Ext.P2 has become practically infructuous. After settlement, the Honourable Supreme Court observed that 'nothing survives' to be done in furtherance of Ext.P2. Even in Ext.P2, only Government was directed to consider these aspects while refixing the payment to the staff of the Advocate General's office and there was no direction that they should be paid in par with the staff of the Legislature Secretariat. On behalf of the State, it was also pointed out that staff of the Legislature Secretariat are W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 8 paid overtime allowance only during the days when Legislative Assembly is in session. If the session continues in the night, they have to work full time in the night also and they are paid overtime allowance on daily basis. The overtime work of the staff of the Advocate General's office is only regarding the preparation of the cause list and that is a regular work and they are paid overtime allowance on a monthly basis. Only on the sitting days of the Court, they have to prepare the cause list working overtime. Only the same amount was paid to the High Court employees who are entrusted with the work of preparing cause list. It is also pointed out that after computerisation, the number of hours they have to sit and quantity of work is also reduced. Even though it is true that the cause list can be finalised after the court functioning, they may have to sit for 1 to 11/2 hours more for preparing the cause list and doing the incidental work. The learned counsel for the petitioner also pointed out that the Advocate General, who was the W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 9 Administrative head has recommended a higher rate of compensatory allowance considering the work of the staff of the Advocate General's office regarding preparation of cause list. But the whole question is whether the overtime work in the Legislative Secretariat only when Assembly is in session and the regular overtime work of the employees of the Advocate General's office are similar or not and whether petitioners are entitled to the same rate of overtime allowance as is paid to the employees of Legislative Secretariat on the basis of the principle. 'Equal pay for equal work'. In this connection, we refer to the three member Bench decision of the Apex Court in State of Haryana and others v. Charanjit Singh and others (AIR 2006 SC 161), wherein it was held that the principle of 'equal pay for equal work' based on Article 14 has no mechanical application. Qualification, nature of work, quality of work, the effort required in a work, object and responsibility of work, functional difference etc. are to be decided by an expert body W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 10 and materials should be there that work is equal in all parameters. Apex Court held as follows: “A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of “equal pay for equal work” requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally, a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 11 the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors.” The Honourable Supreme Court even has justified fixation of different pay for the same category of workers based on higher qualification as held in M.P.Rural Agriculture Extension Officers Association v. State of M.P. and another (AIR 2004 SC 2020) and G.K.Mohan and others v. Union of India (2007 AIR SCW 6801). Here the Legislature Secretariat workers are paid overtime allowance only for the days they actually worked overtime and that too only when the Legislative Assembly is in session and for other days they will not get the allowance. The nature of work are entirely different. W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 12 Preparation of cause list is a routine work whereas employees in Legislative Secretariat should be alert to take any file which was called for and answer queries during the time when assembly is in session. At the time of filing the O.P., the daily overtime allowance payable for the staff of the Legislature Secretariat was Rs.55/- per day of work and for the staff of the Advocate General's office was Rs.200/- per month. It is submitted that there were various revisions and at present, the Legislature Secretariat employees are given Rs.100/- per day when the assembly is in session whereas it is Rs.400/- per month for the staff of the Advocate General's office. The rate of enhancement of overtime allowance is more than the previous rate. The payment of overtime allowance for the employees of the Legislature Secretariat are entirely on a different basis. The nature of work are also different. The nature of overtime work is not equal in all respects and on the date when there is no assembly session, they are not paid the allowance, whereas, this W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 13 is a monthly payment given to the employees of the Advocate General's office as work of preparation of cause list is a regular work. They need not work through out night like the employees of Legislative Secretariat when assembly is in session. Therefore, we are of the opinion that a general direction cannot be given to enhance the overtime allowance on par to the overtime allowance given to the staff of the Legislature Secretariat. At the same time, considering the recommendations of the Advocate General, we are of the opinion that all these matters should be considered by the next Pay Commission. Writ appeals, O.P., Civil Miscellaneous Petitions and all interim applications are disposed of accordingly. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS 14 J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A.NO.2890 OF 2002, O.P.NO.20240 OF 2000, C.M.P.NO.318 OF 1994 IN W.A.886 OF 1992 & CONNECTED PETITIONS ------------------------------------- J U D G M E N T 28th July, 2008