IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 3409 of 2008(E) ------------------------- PETITIONER(S): ------------------ 1. THE KERALA CO-OPERATIVE WORKERS FEDERATION, E.P.SMARAKA MANDIRAM, YOGHASHALA ROAD, KANNUR-670 001, REPRESENTED BY ITS SECRETARY. 2. FREDDY.J., FIBITHA BHAVAN, RAJEEV NAGAR, BEACH P.O., THIRUVANANTHAPURAM-7, SALES HELPER, TRIVENI SUPER MARKET, MANAKKAD, TRIVANDRUM. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ------------------- 1. KERALA STATE CO-OPERATIVE CONSUMER FEDERATION, GANDHI NAGAR, KOCHI, REP. BY ITS MANAGING DIRECTOR. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATION, THIRUVANANTHAPURAM. ADV. SRI.M.SASINDRAN FOR R1 GOVERNMENT PLEADER SRI.K.S.MOHAMMED HASHIM FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3409/08 APPENDIX PETITIONERS EXHIBITS EXT.P1: TRUE PHOTOCOPY OF THE CIRCULAR NO.10/05 DT 13.4.2005 ISSUED BY 2ND RESPONDENT. EXT.P2: TRUE PHOTOCOPY OF THE RESOLUTION NO.2A DT 5.11.2005 OF THE 1ST RESPONDENT. EXT.P3: TRUE PHOTOCOPY OF THE RESOLUTION NO.4(1) (a) DT 19.10.2005 OF THE FIRST RESPONDENT. EXT.P4: TRUE PHOTOCOPY OF THE ORDER ISSUED BY 3RD RESPODENT DT 17.1.2008. EXT.P5: TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY FIRST PETITIONER DT NIL. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 3409 OF 2008 (E) ===================== Dated this the 23rd day of July, 2009 J U D G M E N T The first petitioner is a trade union and the second petitioner is one of its members, who is an adhoc employee working under the 1st respondent. In this writ petition, what is sought for is to quash Ext.P4 to the extend that a section of the adhoc employees of the 1st respondent such as the second petitioner are discriminated and a direction is sought for to disburse the wages, on a uniform basis. 2. Petitioners submit that a large number of contract employees and daily waged employees were working under the 1st respondent. Taking into account this, Ext.P1 circular was issued by the 2nd respondent permitting the 1st respondent to consider them for regularisation subject to the conditions incorporated in Ext.P1. Exts.P2 and P3 are the lists published by the 1st respondent of the contract workers and daily wage employees who were eligible for the benefit of Ext.P1 circular. It is stated that accordingly they were appointed as adhoc employees and still later Ext.P4 order was issued by the 3rd WPC 3409/08 :2 : respondent acting upon the recommendation made by respondents 1 and 2 and providing that out of 400 daily waged employees who were working in 9 categories, 233 of them will be paid 17% wage increase and balance 167, 20% wage increase. In so far as 196 contract employees are concerned, who were also appointed as adhoc employees, Ext.P4 provided that 42 of them will be given 17% increase in wages and one of them 20% wage increase and 153 of them will be given 15% wage increase. 3. According to the petitioners, initially all the beneficiaries of Ext.P1 who are allegedly discriminated, were contract employees or daily wage employees, who were all appointed as adhoc employees and with the appointment so given, they have all fused into one class of employees. It is stated that once they have all become members of one class of employees as above, there cannot be a further classification and a section of them cannot be discriminated in the matter of pay. 4. Government have filed a counter affidavit. In the counter affidavit, it is stated that the 1st respondent had submitted a proposal of wage structure to be revised and implemented and that they have accepted the said proposal. The WPC 3409/08 :3 : proposal as given in Para 5 of the counter affidavit is extracted below for reference. The employees who were appointed as Contract/Mazdoor category before 31.3.2001 were given increase @ 25%. The employees who were engaged on daily wages before 31.3.2001 were given salary increase @ 20% and the employees who were appointed after 31.3.2001 have been sanctioned an increase of 17%. The Registrar of Co-operative Societies, the 2nd respondent considered and scrutinized the proposal and recommended the revised wage structure and forwarded the proposal to Government. The State Government has approved the proposal and the Ext.P4 orders were issued. The 1st respondent revised the salary of the wage employees with effect from 1.11.2006. 5. A reading of this affidavit therefore shows that the employees who have been appointed before 31/3/2001 have been given a higher rate of revision and those appointed after 31/3/2001 have been given a lower rate. Therefore, classification has been introduced based on the cut off date viz., 31/3/2001. 6. A cut off date in the matter of pay and allowances can be justified, provided the same has some relevance and the relevancy if any, should be forthcoming in the pleadings. Neither in the counter affidavit filed by the Government nor in the counter affidavit filed by the 1st respondent is there anything explaining as to why the cut off date of 31/3/2001 was chosen for introducing a WPC 3409/08 :4 : higher rate of revision for one set of employees and a lower rate for another set of employees. In the absence of any factual foundation for fixing a cut off date as above, the cut off date has to be declared as an illegal one. If so, the discrimination in the matter of pay introduced in Ext.P4 on the basis of the cut off date of 31/3/2001 has to be declared illegal and to that extent Ext.P4 has to be set aside and I do so. Necessarily, therefore it is declared that the adhoc employees who are working under the 1st respondent will all be paid wages at uniform rates. The benefits will be extended as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp