IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 12790 of 2005(V) --------------------------------------- PETITIONERS: --------------------- 1. G.P.SANGEETA, HIGHER SECONDARY SCHOOL TEACHER (PHYSICS JR.), S.K.M. HIGHER SECONDARY SCHOOL, KUMARAKOM. 2. M.A.MAYA, HIGHER SECONDARY SCHOOL TEACHER(CHEMISTRY JR.), S.K.M.HIGHER SECONDARY SCHOOL, KUMARAKOM. 3. T.P.JAYASUDHA, HIGHER SECONDARY SCHOOL TEACHER (MATHS JR.) S.K.M HIGHER SECONDARY SCHOOL, KUMARAKOM. 4. JESSY GEORGE, H.S.S.T.(MATHAMATICS JR.), ST.MARY'S H.S.S. (BOYS), BHARANANGANAM. 5. SUJA.C.AUGUSTINE, H.S.S.T.(CHEMISTRY JR.) ST.MARY'S H.S.S.(BOYS), BHARANANGANAM. 6. SHEBIN JOHN, H.S.S.T.(PHYSICS JR), ST.JOHN NEPHUMASIAN'S H.S.S. KOZHUVANAL, KOTTAYAM DISTRICT. 7. BELLA JOSEPH, H.S.S.T.(CHEMISTRY JR.), ST.JOHN NEPHUMSIAN'S H.S.S. KOZHUVANAL, KOTTAYAM DISTRICT. 8. R.PRAVITHA, H.S.S.T. (MATHAMATICS JR) S.N.D.P. HIGHER SECONDARY SCHOOL, KANJIRAM, KOTTAYAM DISTRICT. 9. RAJESH SOMAN, H.S.S.T (CHEMISTRY JR.), S.N.D.P. HIGHER SECODNARY SCHOOL, KILIROOR, KANJIRAM P.O. KOTTAYAM DISTRICT. BY ADV. MR.BENOY THOMAS. W.P.(C). NO.12790/2005-V: RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. *ADDL.R.3 TO R.14 IMPLEADED: 3. ABDUL HAKKIM.R.M., HSST (CHEMISTRY) JR. CALICUT GIRLS HSS, P.O. KALLAI, CALICUT. 4. SINY ANTONY, HSST (PHYSICS), CALICUT GIRLS HSS, CALICUT. 5. E. MONISHA, HSST, UMBICHI HAGEE HSS, CHALIYAM, CALICUT. 6. SINDHU.S. PILLAI, HSST, UMBICHI HAGEE HSS, CHALIYAM, CALICUT. 7. SEEMA PUDHUSSERI, HSST PHYSICS, MM HSS, PARAPPIL, CALICUT. 8. VINOD KUMAR.K.P., HSST HINDI, M.J. HSS ELETHIL, CALICUT. 9. VANDANA RAJA, HSST CHEMISTRY, HIMAYATHUL ISLAM HSS, CALICUT. 10. RAJEENA V.M., UMBICHY HAJEE HSS, CHALIYAM, CALICUT. 11. HARILAL.M, HSST CHEMISTRY, ST. JOSEPH'S BHSS, CALICUT. 12. SMITHA .T.T., HSST, CHEMISTRY, ZAMORIN'S HSS, TALI, CALICUT. W.P.(C). NO.12790/2005-V: 13. SHEEBA.N.B., HSST MATHEMATICS, ZAMORIN'S HSS, TALI, CALICUT. 14. LAKSHMI VARMA.P.K., HSST ENGLISH, ZAMORIN'S HSS, TALI, CALICUT. *ADDL. R3 TO R14 IMPLEADED VIDE ORDER DTD. 19/06/09 IN I.A. NO.12889/08. R1 & R2 BY SR. GOVT. PLEADER SMT. T.B. REMANI, ADDL.R3 TO R.14 BY ADV. MR.PAULSON THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2009 ,ALONG WITH W.P.(C). NO. 12012 OF 2006, THE COURT ON 22/12/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.12790/2005-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1 SERIES: COPIES OF THE APPROVAL ORDERS OF THE PETITIONERS. EXT.P.2: COPY OF THE APPOINTMENT ORDER OF THE P.9 DTD.08/10/2001. EXT.P.3: COPY OF THE GOVERNMENT ORDER DTD. 20/11/2004 & NO.G.O.(MS). 351/2004/GEN. EDN. EXT.P.4: COPY OF THE GOVERNMENT ORDER NO. 162/98/GEN. EDN. DTD. 13/05/98. EXT.P.5: COPY OF THE GOVT. ORDER NO.18/91/GEN. EDN. DTD. 01/02/1991. EXT.P.6: COPY OF THE REVISED APPROVAL ORDER OF THE P.9 ISSUED BY THE R.2. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).27077/05 DTD. 05/12/2008. EXT.P.8: COPY OF THE G.O.RT.NO.3069/09/GEN. EDN. DTD. 23/07/09. EXT.P.9: NIL. EXT.P.10: COPY OF THE REPRESENTATION FILED BY THE PETITIONERS DTD. 01/02/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 12790/2005-V, 12012/2006-V and 10520/2009-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009. JUDGMENT These writ petitions are at the instance of the petitioners who are having approved service as HSST (Junior) in various subjects in different schools. The main prayer in the writ petitions is to grant a declaration that they are entitled to Full Time scale of pay and other ancillary benefits admissible to the post of HSST, granted by Ext.P3 Govt. Order to their counter parts appointed as HSST (Part time). 2. The petitioners herein have been appointed in various schools prior to the introduction of the statutory rules in Chapter XXXII K.E.R. i.e., on 12.11.2001. They have been appointed as HSST Part time/Junior in aided higher secondary schools by direct recruitment, during the years 1999, 2000 and 2001 and the orders of appointment have been produced in these writ petitions. 3. It is their case that the Government as per G.O.(Ms) No.162/98/G.Edn. date 13.5.1998, produced as Ext.P4 in W.P.(C) No.12790/2005, prescribed the method of filling up of the post of Higher wpc 12790/05, 12012/06 & 10520/09 2 Secondary School Teacher in Government and aided higher secondary schools. In aided higher secondary schools, it was laid down that: “(i) 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers. (ii) xxxxx (iii) Appointment to the 75% vacancies earmarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management.” Para 3 of the above Govt. Order is important, which is extracted below: “3. While making appointments the Manager will see that only Part-time teachers are appointed when the periods to be taught are less than 15 in a week. This procedure will be followed in Government schools also when direct recruitment is resorted to through Employment Exchange. But the teachers appointed from General Education Subordinate Service will be treated as appointed by promotion and they will be full-time teachers irrespective of the periods to be taught.” The petitioners contend that the teachers appointed from General Education Subordinate Service, viz . in Government schools, were ordered to be treated as appointment by promotion and they will be full time teachers irrespective of the periods to be taught, i.e. the by transfer appointees therein were given a benefit as applicable to Full Time teachers. This was wpc 12790/05, 12012/06 & 10520/09 3 challenged in various writ petitions before this Court by the by transfer appointees of aided schools who are appointed in the 25% quota. They also sought for Full Time benefits and the writ petitions were allowed. The Writ Appeals, viz. W.A.Nos.460 & 469 of 2000 were dismissed and Special Leave Petition filed before the Apex Court was also dismissed. Finally, the Government by Ext.P3, ordered to grant the benefit of Full Time scale of pay to all the Aided Higher Secondary School Teachers appointed by transfer from among qualified HSA/UPSA/LPSAs irrespective of the periods of teaching as in the case of Govt. Higher Secondary School Teachers as ordered in Ext.P4. It is made clear in Ext.P3 that this will not be applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001. 4. It is pointed out that the very same criteria will have to be adopted in the case of the petitioners who were appointed under the 75% category in the aided higher secondary schools and there cannot be any discrimination as such in granting the scale of pay to them. They were also appointed pursuant to the method provided in Ext.P4 and with regard to the qualifications, nature of duties, workload, etc. there is no distinction between Part-time teachers appointed under 75% category and by transfer wpc 12790/05, 12012/06 & 10520/09 4 appointees under 25% category. It is therefore contended that the denial of the benefit to them amounts to discrimination. They therefore seek the same benefit granted to others in Ext.P3. 5. The respondents have filed a counter affidavit in W.P.(C) No.12012/2006. The distinction between appointees under 25% category and 75% category is sought to be explained in the following manner: “Such teachers were enjoying a scale of pay with increments in a time scale in the lower post. The demand of the petitioners who are direct recruits, a pay at par with experienced teachers in the field is not legally sustainable. In Government Higher Secondary Schools, when selection is made from Statewise seniority, teachers with more years of service are appointed first, but in Aided Higher Secondary Schools, teachers with less years of experience may get opportunity for selection. Such a discrimination cannot be separated when a general order is issued. In aided Higher Secondary schools, the appointing authority is the Manager. In most of the Aided Higher Secondary Schools, the Management has not considered seniority for selection under 25% category and many of such cases has also been upheld by this Honourable Court.” It is further contended in para 6 as follows: “The petitioners are direct recruits whereas the by transfer appointees are from the qualified teachers under the management considering their qualifications, seniority with relaxation of age. The direct wpc 12790/05, 12012/06 & 10520/09 5 recruits cannot claim the benefit as a matter of right. Service and experience have been given due weightage in all departments. For example, Assistants are considered as a collective unit doing similar works, but being paid according to their service and experience by upgrading as Assistant Grade-I, Senior Grade/Selection Grade/Higher Grade etc.” It is further pointed out that if persons like the petitioners are granted the benefits, then there will be huge liability on the part of the Government. 6. Therefore, the crux of the contention raised by the respondents is that the by transfer appointees have been given a weightage based on their earlier service, obviously as HSA/UPSA/LPSA. In para 16 of the counter affidavit, it is also stated that “in all departments, service, experience, etc. are being given weightage. Similar job with same pay is not a conducive aspect in any field in civil service.” 7. Learned counsel for the petitioners Shri Binoy Thomas contended that equal pay for equal work is a well accepted principle and the same cannot be denied, on the basis of the source of recruitment. If both categories have been fused into one, viz. HSST/HSST (PT/Jr.) there cannot be any distinction based on the source from which they have been appointed. All of them are performing the very same duties. There is no wpc 12790/05, 12012/06 & 10520/09 6 distinction with regard to the qualification or the number of periods they have to handle. Therefore, the denial of the higher pay which is granted to the by transfer appointees, amounts to grave discrimination and is violative of Article 14 of the Constitution. Learned counsel for the petitioner relied upon the following decisions of the Apex Court and that of this Court: Roshan Lal Tandon v. Union of India and others (AIR 1967 SC 1889), The General Manager, South Central Railway, Secunderabad v. A.V.R. Siddhanti and others (A.I.R. 1974 SC 1755), M.P. Singh and others v. Union of India and others ( AIR 1987 SC 485), Telecommunication Research Centre Scientific Officers (Class I) Association and others v. Union of India and others (AIR 1987 SC 490), Bhagwan Dass and others v. State of Haryana and others (AIR 1987 SC 2049), Jaipal and others v. State of Haryana and others (AIR 1988 SC 1504), Kamlakar and others v. Union of India and others (AIR 1999 SC 2300) and State of Kerala and others v. Daisy K.V. and others (ILR 2006 (4) Ker. 772) and an unreported judgment in W.P.(C) No.27077/2005. 8. It is submitted that in W.P.(C) No.27077/2005 similarly placed teachers have approached this Court and the petitioners therein were appointed under 75% quota prescribed for direct recruits. This Court held wpc 12790/05, 12012/06 & 10520/09 7 that they cannot be discriminated in the matter of granting of scale of pay and there is no justifiable classification. It is pointed out that the Government has been directed to pass a fresh order in the matter and the petitioners are also entitled for a similar relief. 9. Learned Govt. Pleader Smt. T.B. Remani tried to explain that in the judgment in W.P.(C) No.27077/2005 the learned Single Judge relied upon the dictum laid down by a Division Bench in Daisy K.V.'s case (ILR 2006 (4) Ker. 772). But actually the dictum laid down by the Division Bench will not cover the very same issue and therefore the directions in the said judgment cannot apply to the facts of this case and the matter has to be considered independently. 10. I shall first refer to the principles stated by the Apex Court and this Court in the various decisions relied upon by the learned counsel for the petitioners. In Roshan Lal Tandon's case (AIR 1967 SC 1889), the Constitution Bench of the Apex Court held that after the absorption of direct recruits and promotees in one cadre, no discrimination can be made for future promotions. The Apex Court, after considering the legal contentions, laid down the dictum in para 5 as follows: “In our opinion, the constitutional objection taken by the petitioner wpc 12790/05, 12012/06 & 10520/09 8 to this part of the notification is well founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade 'D' there was one class in Grade 'D' formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C'.” This judgment was followed in a subsequent decision in South Central Railway's case (AIR 1974 SC 1755). Therein, the question was considered in relation to seniority after drawing personnel from three different sources and integration into a single cadre. The Bench laid down the following criteria in para 35: “The impugned directions of 1957 and 1961, in so far as they pertain to categories (ii) and (iii), are hit by the rule in Roshan Lal Tandon v. Union of India, ((1968) 1 SCR 185 = AIR 1967 SC 1889) according to which once the persons coming or recruited to the service, from two different sources -- in that case promotees and direct recruits -- are absorbed into one integrated class with identical service conditions, they cannot be discriminated against with reference to the original source, for the purpose of further promotion to the higher grade. What was said about further promotion in Roshan Lal Tandon's case (supra) is equally applicable to wpc 12790/05, 12012/06 & 10520/09 9 absorption and seniority in the instant case.” 11. We will now come to decisions wherein the Apex Court had to consider a similar issue in the light of grant of different pay structure to persons drawn from two sources and fused into one. The first of those decisions in in M.P.Singh's case (AIR 1987 SC 485). Therein, special pay was granted to officers drawn from various State cadres forming the investigation units of Central Bureau of Investigation. Direct recruits of the same unit challenged the same as violative of Articles 14 and 16 of the Constitution. Granting special pay to members of various departments from State cadres was sought to be supported on the plea that it was being paid to attract officers of high calibre from their parent departments and the arduous nature of their duties. The above reasoning was not accepted by the Apex Court and it was held that the same violates Articles 14 and 16. The Bench expressed their view in para 10 as follows: “Where the Special Pay that was being paid to all the officers in the cadre of Sub Inspectors, Inspectors and Deputy Superintendents of Police in the Central Investigating Units of the Central Bureau of Investigation has nothing to do with any compensation for which the officers who have been drawn from various State cadres to the Central Bureau of Investigation, the deputationists, may be entitled either on the ground of their richer wpc 12790/05, 12012/06 & 10520/09 10 experience or on the ground of their displacement from their parent departments in the various States, but it relates only to the arduous nature of the duties that is being performed by all of them irrespective of the fact whether they belong to the category of the officers who have been recruited directly to the Central Bureau of Investigation, the 'non-deputationists', the classification of the officers working in the said cadres into two groups, namely, deputationists and non-deputationists for paying different rates of Special Pay would not pass the test of classification permissible under Articles 14 and 16 as it does not bear any rational relation to the object of classification.” 12. In Telecommunication Research Centre Scientific Officers Association's case (AIR 1987 SC 490), the matter concerned was granting of special pay to promotee officers of the Research Centre and the denial of the same to direct recruits who are doing the same job and possess equal qualification. It was held that the same amounts to discrimination. The special pay granted to the transferred employees were sought to be supported on the plea that they are selected by the Union Public Service Commission after a rigorous competitive examination. The Apex Court relied upon M.P. Singh's case (supra) and was of the view that all the direct recruits are doing the very same job as the transferred officers and Special Pay is not being paid to the transferred officials for compensating wpc 12790/05, 12012/06 & 10520/09 11 their displacement or for their qualifications and finally, on a finding that persons who are directly recruited and working in the centre are not inferior to those who enter the centre by transfer, it was held that “there is no justification to deny the Special Pay at the same rates, to direct recruits working in the Centre. Denial of Special Pay to the direct recruits amounts to violation of Articles 14 and 16 of the Constitution of India.” 13. In Bhagwan Dass's case (AIR 1987 SC 2049), the doctrine of equal pay for equal work, was considered, especially under Article 39(d) of the Constitution of India, in relation to persons doing similar work. Therein, two sets of personnel drawn under the Education Department, were offered different scales of pay, even though they were performing the very same duties. The view taken by the Bench is discernible from para 11 which is extracted below: “Be that as it may, so long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the standpoint of 'equal work for equal pay' doctrine, the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate selected by a process whereat candidates from all parts of the country could have competed or whether they are selected by a process where candidates from only a cluster of a few villages could have completed (competed) is wpc 12790/05, 12012/06 & 10520/09 12 altogether irrelevant and immaterial, for the purposes of the applicability of 'equal work for equal pay' doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country, he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of a few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to compete against candidates from all over the country. But once he is selected, whether he is selected by one process or the other, he cannot be denied equal pay for equal work without violating the said doctrine.” 14. In Jaipal's case (AIR 1988 SC 1504) also the same doctrine was considered and in a similar set of facts, in paragraphs 6 and 7 their Lordships examined the principles contained in Article 39(d) of the Constitution and reiterated the position in the following words: “Having regard to these facts and circumstances we are of the view that there is no difference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. The doctrine of equal work equal pay would apply wpc 12790/05, 12012/06 & 10520/09 13 on the premise of similar work but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay' would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work. Article 39(d) contained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Art.39 is included in the Chapter of Directive Principle of State Policy, but it is fundamental in nature. the purpose of the article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay.” 15. In Kamlakar's case (AIR 1999 SC 2300), it was held that the birth marks have no relevance in a matter like this. Therein also, the granting of pay scale to persons who are forming in one cadre, was considered and it was held that “no distinction can be made between direct recruits and promotees in the matter of pay scale. Para 12 emphasised the relevant doctrine in the following words: “Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal wpc 12790/05, 12012/06 & 10520/09 14 treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection.” Thus, it is clear that equal pay for equal work is a well accepted principle which conform to Article 39(d). After drawing persons into one cadre from different sources there cannot be any distinction on the basis of “birth mark” between them while they are discharging similar duties and there cannot be any other peculiar distinctions to form them as two different classes. Equal pay for equal work is the rule. 16. Since learned Govt. Pleader contended that in Daisy's case (ILR 2006 (4) Ker. 772), a different question was considered, I will examine the matter with reference to the contentions raised therein and the dictum laid down. Therein also, the appointment of HSSTs from two different sources in terms of various Govt. Orders, was considered and the distinction sought to be made in regard to the payment of scale of pay was specifically adverted to. The writ petitions were filed by the direct recruits alleging discrimination in the scale of pay with by transfer appointees. After considering various aspects, it was held that the direct recruits cannot be discriminated. In para 22, it was held as follows: “The method of appointment to the post in question is governed by Ext.P1(a) Government Order issued well earlier than the sanctioning wpc 12790/05, 12012/06 & 10520/09 15 of the school itself. That does not discriminate in the matter of payment with regard to the promotees and direct recruits. The pay revision order referred to above also does not, in any way, discriminate with respect to the payment of arrears in respect of promotees to the post of Higher Secondary School teachers and direct recruits against the said post. The promotees have been given arrears in full as admitted by the Government Pleader. The petitioners in this case had been appointed as per Ext.P13 series mentioning a particular scale of pay and their posts had been duly sanctioned as per Ext.P14 order. the order approving their appointment, Ext.P15, also refers to the scale of pay. In such circumstances, the direct recruits cannot be discriminated.” The said principle was followed by the learned Single Judge in the judgment in W.P.(C) No.27077/2005. But the learned Govt. Pleader submitted that the Division Bench laid down the said principle while considering one of the conditions in the impugned order, Ext.P8 therein and it cannot have any application here. 17. A reference to the facts of the said case shows that the petitioners therein were appointed in a Higher Secondary School