HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.289 of 2006 (SS) Smt. Parwati Devi wife of Sri Bhagwan Singh R/o Village Samshergarh, District Dehradun ……… Petitioner Versus 1. State of Uttaranchal 2. Director of Education, Uttaranchal 3. Basic Education Officer, Dehradun 4. Assistant Basic Education Officer, Block Doiwala, Dehradun 5. Head Master Girls Primary School, Shamshergarh, District Dehradun…… Respondents Sri M.C. Pant, Advocate for the petitioner Standing Counsel for the respondents. Dated: 4.3.2006 Hon’ble Rajesh Tandon, J. Heard Sri M.C. Pant, Counsel for the petitioner and Standing Counsel for the respondents. By the present writ petition the petitioner has prayed for a writ of mandamus directing the respondent to consider the case of the petitioner for regularisation on the post of Paricharika in the Girls Primary School, Shamshergarh, District Dehradun. Briefly stated according to the petitioner she was appointed as Parichariks in the Girls Primary School, Samshergarh in May 1978 and since then She has been continuously working in that school. The petitioner was being paid a salary of Rs.15/- per month till 1998 and thereafter she was given Rs.150/- per month. The petitioner has submitted 2 that she sent several representations to the respondent authority for her regularization and the authorities have also recommended the case of the petitioner for the regularisation. The petitioner has filed copy of the attendance register and salary register from June 1978 onward, which shows that the petitioner has been putting her signatures on the register regularly. The counsel for the petitioner has submitted that the petitioner has been doing work in such a meager salary for more than 28 years which is violative of Articles 14, 15, 16 and 21 of the Constitution of India. Petitioner to get the salary according to the nature of the work being not a bounty but it is a right under Article 21 of the Constitution of India. There cannot be arbitrariness in the salary in as much as any curtailment of pay will amount to unequal treatment as held in the case of Kumari Shrilekha Vidarthi etc. vs. State of U.P. & others AIR 1991 SC 537. The Apex Court has observed as under: “The preamble of the Constitution of India resolves to secure to all its citizens Justice, Social economic and political and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains ‘Directive Principles of State Policy’ which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the 3 Preamble. This being the philosophy of the Constitution, can it be said that if contemplates exclusion of Art. 14 –non- arbitratiness which is basic rule of law-from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art.14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different maters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequal” In Kapila Hindorgani vs. State of Bihar 2003 (7) AIC 18 (SC) the Apex Court has observed as under: This Court in Chameli Singh and others vs. State of U.P. and others (1996) 2 SCC 549 referring to Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1966 held that the State Parties recognize “the right to everyone to an adequate standard of living for himself and for his family including food, clothing housing and to the continuous improvement of living conditions”. Indisputably, 4 the State parties were to take appropriate steps to ensure realization of this thought. Justice Homles expressed the following view in Missouri v. Halland 252US 416 (433). “When we are dealing with words that also are a constituent act like the constitution of the United States, we must realise that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successors must seat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago.” Justice Frankfurter elucidated the interpretive role in “Some Reflections on the Reading of Statutes.” “There are varying shades of compulsion for Judges behind different words, difference that are due to the words themselves, their setting in a text, their setting in history. In short, Judges are not unfettered glossators. They are under a special duty not to overemphasize the 5 episodic aspects of life and not to undervalue its organic processes- its continuities and relationship.” In Jagdish Saran and others vs. Union of India it is stated: Law constitutional law, is not an omnipotent abstraction or distant idealization but a principled, yet pragmatic value laden and result oriented, set of propositions applicable to and conditioned by a concrete state of social development of the nation and inspirational imperatives of the people. India- that is the inarticulate major premise of our constitutional law and life.” It is also well settled that statute should be interpreted in the light of the international Treaties and Conventions. In Chairman Railway Board and others vs. Mrs. Chandrima Das and others this Court stated the law thus: 24. The International Covenants and Declarations as adopted by the United Nation have to be respected by all signatory States and meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those rights. The applicability of the Universal Declaration of Human 6 Rights and the Principles thereof may have to be read, if need be into the domestic jurisprudence.” In ‘Human Rights and Indian Values’ Justice M. Rama Jois notices the Ancient Indian Texts in the following words: SAMANI PRAPA SAHA VONNBHAGA SAMANE YOKTRAN SAHA WO YNISM ARAH NABHIMIVABHITE : “All have equal rights in articles of food and water. The yoke of the chariot of life is placed equally on the shoulders of all. All should live together with harmony supporting one another like the spokes of a wheel of he chariot connecting its rim and the hub, (Atharvanaveda- Samjanana Sukta)”. Thus, the right to equality of all human beings has been declared in the Vedas, which are regarded as inviolable. In order to emphasize the dignity of the individual, it was said that all are brothers as all are the children of God. No one is inferior or superior. Similarly, the Artharvanaveda stressed that all have equal right over natural resources and all were equally important like spokes in a wheel. Both the Rigveda and Arharvanaeda declared that co-operation between individuals in necessary for happiness and progress. It is also of utmost importance to note that right to equality was made a part of “Dharma” long before the State came to be established. 7 It is equally interesting to refer to the contents of Articles 1 and 7 of the Universal Declaration of Human Rights (1948), which read: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” “All are equal before law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement of such discrimination.” This declaration is similar to the declaration of equality made in the Rigveda. After the establishment of the State, the obligation to protect the right to equality was cast on the Rulers. It was made a part of the Rules of Raja Dharma, the Constitutional law. YATHA SWARIN BHUTANI DHARA DHARYETE SAMAM TATHA SWARIN BHUTANI BIBHARTE PARTHIVM VARTAM “Just as the mother earth gives equal support to all the living beings, a king should give support to all without any discrimination” 8 This also meant that the kings were required to afford equal treatment to all the citizens in the same manner in which a mother treats all her children.” In the 12 Misconceptions About the Right to Food (FIAN) it is inter alia stated: “What does the Right to Food Mean? Can the existence of this Right cause laziness among people? Right to Food is about respecting, protecting and fulfilling access to food producing resources and work. Therefore, the Right to Food doesn’t make people lazy but busy, enabling them to feed themselves. Would the right to food be asking for too much from the government, and advocating for big government? The Right to Food in the context of Human Rights does not mean that the state is a super-entrepreneur determining and carrying out economic activities according to its own wisdom. It means the Right to Food Oneself, which emphasizes dignity and self- reliance, very different from command economics of big government. Does the Right to Food require a moral revolution of society, allowing human rights to become the foundation of interpersonal ethics? The Right to food does not concern interpersonal ethics, but the duty to operationally the state’s obligations under Economic and Social Human Rights. 9 Is hunger a violation of Human Rights? Lack of access to food can have many reason. If the State fails to respect, protect or fulfil this access, unless for lace of resources in a society, this must be termed a violation of the human rights to food. Very often, obligations of states vis-à-vis the vulnerable groups and persons are obvious and so is the availability of resources in society. Is the Right to Food about good governance? Good governance is negotiable, Human Rights are not. The central concept for Human Rights is the concept of “violation” referring to the suppression of vulnerable groups and individuals, whereas the concepts of good governance all too often deal with political theory and statistical indicators. If a country has the resources, but people get marginalized or continue in deprivation, this is not bad government, but oppression, intentional or not. Is the Right to Food realized if nobody is hungry anymore? Not necessarily. The Right to Food not only means that hunger and malnutrition are eradicated, but that future malnutrition can be eradicated by Court action or other comparable mechanisms holding the state accountable on its obligations under the Right to Food.” ………………… ……………. ……………… 10 Yet again in M/S Shantistar Builders v. Narayan Khimalal Totame and others, this Court observed: “Basic needs of man have traditionally been accepted to be three food, clothing shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the rights to food, the right of clothing, the right to decent environment and a reasonable accommodation t o live in…..” The term ‘life’ used in Article 21 of the Constitution of India had a wide and far reaching concept. It includes livehood and so many other facets thereof. “Life” as observed by Field, J. in Murun vs. Illinois, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. [See Board of Trustees of the Port of Bombay vs. Dilipkumar Raghvendranath Nadkarni and others and Olga Tellis and others vs. Bombay Municipal Corporation and others] In the present case copies of the Attendance Register of the School show that the petitioner was working full time in the school and was being paid Rs.15/- and thereafter Rs.150/- per month as salary. In view of above, a writ of mandamus is issued directing the respondents to consider regularization of the petitioner as class IV employee with retrospective effect and in the mean 11 time the respondents are directed to pay minimum of pay scale as applicable to class IV employees. Accordingly, the writ petition is allowed. No order as to costs. Dated: 4.3.2006 Rajesh Tandon, J. *Dhyani