IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 21854 of 2006(B) -------------------------- PETITIONER(S): --------------- 1. T.C. VALSAMMA, W/O. GEORGE, AMARADHALAYAM, CHENGANNUR, ALAPPUZHA DISTRICT. 2. KUNJUMOL, W/O. KUTTAN, PARAPPURATH VEEDU, PULIYOOR P.O., CHENGANNUR, ALAPPUZHA DISTRICT. 3. KUNJAMMA KUNJUMON, W/O. KUNJUMON, KALABHAVAN, MUTTOM P.O., THUMPAMON, PATHANAMTHITTA DISTRICT. 4. K. CHELLAMMA, W/O. BHASKARAN C., SIBI BHAVAN, MUDIYOORKONAM P.O., PATHANAMTHITTA DISTRICT. 5. P. MEENAKSHI, D/O. SANKARAN, H.20/532, MUNICIPAL LANE, KALAMANDAPAM, PALAKKAD DISTRICT. 6. KARTHU. P.A., W/O. A.K. CHANDRAN, AVANITHARA VEEDU, P.O. ERIYADU, KODUNGALLOOR, TRICHUR DISTRICT. 7. USHA I.I., D/O. ITTIRI, IRINJALAKKUDAKARAN HOUSE, P.O. KARIVANNUR, TRICHUR DISTRICT, PIN-680 711. 8. THANKA K.M., W/O. VASU, KALATHINGAL HOUSE, P.O. VATTANATHARA, MANNAM PETTA COLONY, TRICHUR DISTRICT. 9. GOWRIKUTTY, W/O MANIYAN, ROHINIL HOUSE, KIZHUMURI P.O., RAMAMANGALAM. 10. LAKSHMI T., W/O. SIVAN P.T., KAKKANDAMPALLY, HARIJAN COLONY, EDATHALA NORTH P.O. 11. M.K. BHANUMATHI, W/O. M.T. MOHANAN METTIL VEEDU, CHEPPANAM NORTH, PANANGAD P.O. 12. V.S. KOUSALIA, W/O. IYYAPPAN, VILLADAN VEEDU, MALAYATOOR P.O., WEST COLONY, KALADY. 13. OMANA M.K., W/O. KUNJAPPAN P.A., PURAYINGANATTU CHIRA, THOPPILAKKAD, ERAMAM, MUPPATHADOM P.O., ERNAKULAM DISTRICT. 14. AMMINI M.I., W/O. STALIN, MUNDAKATTU VEEDU, KUMBALANGI P.O., KOCHI-7. 15. CHANDRAMATHI P.K., W/O T.K. RAVI, THALAZHATTUPARAMBIL, KOOTHATTUKULAM P.O., ERNAKULAM. 16. C. BHARATHI, W/O THANKAPPAN, PERINGOD, T.O.G. COLONY, KALAMASSERY. 17. C.T. THANKAMMA, W/O. M.K. RAMAN, MANEKKAL PARAMBIL, POTTANIKKAD P.O. 18. SEETHA P.K., D/O. KUTTAPPAN P.K., PADATHILAN, PINDIMANA P.O., KOTHAMANGALAM. 19. KAMALAMMA M.V., W/O.LATE NARAYANAN A., MANKUZHI, MUNDAKKOTTAKKAL, PATHANAMTHITTA. 20. SUVARNA, W/O. MADHU P.R., MANKAZHI, MUNDAKKOTTAKKAL, PATHANAMTHITTA. 21. MALLIKA M.M., W/O. K.C. KRISHNAN, KUNNATH PARAMBU, PANAYIKULAM, ERNAKULAM. 22. K.C. KUNJAMMA, W/O. DAMODHARAN, KANHIRAMNIL KUNNATHU, VENMANI P.O. 23. THANKAMMA K.K., W/O. MADHAVAN K.C. PUNTHALAKIZHAKKTHIL VEEDU, PEIRNGILIPURAM P.O., ERNAKULAM. 24. VIJAYAMMA T., W/O MADHU, BLOCK NO.49, MUTTAM P.O., THUMPAMAN, PATHANAMTHITTA. 25. DAYAVATHY M.R., W/O. RAJENDRAN, PADINTHETHIL VEEDU, CHERIKKAL, MUDIYOORKONAM P.O., PANTHALAM. 26. C. SYAMALA, W/O. SELVARAJ, H.20/532, MUNCIPAL LANE, KALMANDAPAM, PALAKKAD DISTRICT. 27. SANTHA V.K., W/O. LOHITHAKSHAN, VAZHAVALAPPIL, P.O. PUTHENCHIRA KOMPATH KADAVU, TRICHUR-680 682. 28. SULOCHANA P.R., W/O. VELAYUDHAN, CHEKKERI HOUSE, P.O. VERUPADOM, ALAGAPPANGAR VIA, TRICHUR DISTRICT. 29. SOBHANA T.K., W/O. AYYAPPAN, KALATHINGAL HOUSE, P.O. VATTANTHARA, MANNAMPETTA COLONY, TRICHUR DISTRICT. 30. K.T. SARADA, D/O. THEVAN, PALLIPARAMBIL VEEDU, KEEZHUNNI, RAMAMANGALAM. 31. SARASU VELAYUDHAN, W/O. VELAYUDHAN, PUKKATTUMUGAL, VADASSERY LAKSHAMVEEDU COLONY, EDATHALA P.O. 32. SUDHARMA V.S., W/O. SUBBAB VENNATHARA, CHELLANAM. 33. KALUKURUMBA, W/O. LATE KODUNGALI, PULIYAMBILLI VEEDU, MALAYATTOOR P.O., WEST COLONY, KALADY. 34. SARADA C.K., W/O. C. VASU, HARIJAN COLONY, MUPPATHADOM ERNAKULAM DISTRICT. 35. BHAMA V.K., D/O. KANDAN, VANCHIPURAKKAL VEEDU, KUMBALANGI P.O., KOCHI-7. 36. KUNJANKUTTY, W/O. KUNHAN, VELLAPPILLIL, PULINTHANAM P.O. 37. T.A. RADHAMANI, W/O. KUNHUMON E.V., ELAYIDATHUMPARAMBIL, IROORPADAM P.O., KOTHAMANGALAM. 38. K.K. PUSHPA, W/O. KUTTAPPAN, EDATHITHARA HOUSE, PANAYIKULAM, ERNAKULAM. 39. SOMINI, W/O. ACHUTHAN, PALASSERY VEEDU, CHURULIKODE P.O., PATHANAMTHITTA. 40. VALLIKUTTY M.K., TEACHER, NURSERY SCHOOL, KADAVANTHRA. 41. OMANAMANI, AAYA, NURSERY SCHOOL, KOOTHATTUKULAM. 42. MINI RAJU, KONATHARA HOUSE, KADAVANTHARA. 43. MANJU, TEACHER, NURSERY SCHOOL, RAYAMANGALAM. BY ADV. SRI.THAMPAN THOMAS SRI.THAMPAN THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS COMMISSIONER AND SECRETARY, SCHEDULED CASTES AND SCHEDULED TRIBE DEVELOPMENT (C) DEPARTMENT TRIVANDRUM. 2. THE DIRECTOR, SCHEDULED CASTE DEVELOPMENT DEPARTMENT, TRIVANDRUM. GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1: True copy of the Order No. A3-9293/98 dated 16.06.1998 Ext.P2: true copy of the order dated 21.12.1998. Ext.P3: True copy of certificate dated 3.02.1996. Ext.P4: true copy of notification of advertisement No. 10/2000. Ext.P5: true copy of judgment dated 13.08.2004 in O.P 2408/01 Ext.P6: True copy of representation dated 6.10.2004. Ext.P7: True copy of the order No.G.O.(Rt) No. 238/06/SCSTDD dated 01.03.2006 //true copy// HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C).No.21854 of 2006 ---------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT The petitioners herein 43 in number, being dissatisfied with the pitiable conditions of service under which they had been working and the nominal emoluments paid to them, preferred this writ petition complaining that they were being discriminated vis-a-vis other temporary and regular employees. The petitioners are the teachers and ayahs working in various kindergarten(L.K.G. And U.K.G) under the respondents. As a programme for the upliftment of Schedule Castes and Schedule Tribes, the Government of India sanctioned a scheme for starting Balavadies under the Schedule Caste and Schedule Tribe Development Department in various parts of Kerala. Balavady cum Feeding centers under the Department were started during the year 1979. The teachers and ayahs were engaged on honorarium basis. Subsequently Government upgraded Balavadies into L.K.G. and U.K.G and appointed one teacher and one ayah each in U.K.G. wing on contract basis with honorarium amounting to Rs. 1,000/- and 500 respectively vide G.O.(Ms) No. 49/95 SCSTDD dated 19.9.1995. 2. The petitioners are working as teachers and ayahs working in various kindergartens under the Department for the last more than 23 years . In the year 1983 L.K.Gs and U.K.Gs were organised as Balavadies In the initial stage the service of the persons like the petitioners were W.P.(C).No.21854 of 2006 -2- utilised by the respondents on the basis of honorarium on a temporary basis. In the year 1984 the petitioners were given training by the respondents. The Petitioners belong to Schedule Caste and Schedule Tribe. During the said period the petitioners were working with an honorarium of Rs.100/-, whereas the candidates selected through employment exchange were put on a pay scale of Rs. 580-800 /- 3. When the Balavadies were upgraded as nursery schools which were in existence from the beginning, nursery school teachers and ayahs were appointed through Kerala Public service Commission. The petitioners were allowed to continue in service on humanitarian grounds on contract basis. They were given honorarium. Regular appointment in the category of nursery school teachers/ ayahs were made only in the then existing nursery schools. The pay scale was fixed for teachers appointed through Kerala Public Service Commission as Rs.1125-1720 during the year 1996. At the same time the petitioners' honorarium was increased as Rs.525 and 475 respectively for nursery school teachers and ayahs. 4. Petitioners were also teachers who had acquired training in the year 2000 the Kerala Public Service Commission issued a notification for recruitment of teachers in the nursery schools in the scale of Rs. 3350- 5275. The Petitioners are continuously working for the last more than 23 years but they were paid only the honorarium . W.P.(C).No.21854 of 2006 -3- 5. The candidates recruited through Kerala Public Service Commission.,employment Exchanges, and the petitioners(on contract basis) had been performing similar duties and discharging similar responsibilities. There was clear distinction between the permanent staff and temporary hands recruited through employment exchanges in pay scale and other allowances comparing with that of the petitioners. . The service benefits are different, though both groups are doing the same job . So far as the petitioners are concerned the Government had not cared even to pay the salary and other benefits as payable to the temporary hands deployed through employment exchanges. When the employment exchange hands are paid salary at a fixed pay scale, the petitioners are paid only petty amounts as honorarium. There was no occasion to disengage the petitioners after they were continued years after years. One thing which deserves attention is that the petitioners performed their duties under the same situation and circumstances wherein the permanent teachers and temporary teachers had been working. But there has been a wide disparity in the petitioners' emoluments and other benefits. It is not disputed that the petitioners were working for the last more than 23 years. After working for such a long period and performing same duties, it is too much to say that their deployments was of a casual nature. The attitude of the State Government the least to say, is surprisingly strange. They W.P.(C).No.21854 of 2006 -4- were not expected to cling to the technicalities of forms other than to see the substance and realities of existing facts and prevailing situation of their own making. There is no dispute about the fact that there has been disparity in emoluments and other working conditions between the honorarium payers and permanent or temporary staffs. 6. The principles of law on the subject is well settled. The Apex Court repeatedly upheld the proposition of equal pay for equal work in Bhagwan Dass and others Vs. State of Haryana and others reported in AIR 1987 SC 2049 The Apex court also held that the Central Government could not take any advantage of its dominant position to treat the work as casual and retain them on lower wages ( Bharatiya Dak Tar Mazdoor Manch Vs. Union of India and others AIR 1987 SC 2342 ). In State of West Bengal Vs. Pantha Chatterjee and others reported in AIR 2003 Supreme Court 3569, the Apex Court followed the aforesaid decisions and held that the part time Border Wing Home Guards could not be treated differently from the permanent staff of the B.W.H.G and are to be accorded parity with them. It is also held by the Apex Court that the part time workers owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff of the Border Wing Home Guards. The Apex court confirmed the decision of the learned W.P.(C).No.21854 of 2006 -5- judge of the Calcutta High Court to the effect that the part time workers are entitled to be absorbed irrespective of the age bar which would stand waived. 7. In the Food Corporation of India Vs. Shyamal K.Chatterjee and others reported in AIR 2000 SC 3554 the Supreme Court observed that there should be no disparity between the different kinds of casual workers and regular workers. The respondents in the above said case who are contract causal workers contended that they are entitled to wages at par with regular class IV employees of the Food Corporation of India and sought for directions to make such payments as per the pay revision from time to time. The Calcutta High Court allowed the claim of the respondents. The Supreme court confirmed the finding. 8. In the recent decision of the Supreme Court in U.P State Electricity Board Vs.Pooran Chandra Pandey reported in 2007 (4) KLT 513 (SC) the Apex Court distinguished the decision of the same court in Secretary State of Karnataka and others Vs. Umadevi and others 2006(4) SCC 1 and held that the petitioner therein should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board 'in the same manner and position' and that the Board cannot deny the benefit of regularisiation to the petitioners who were working from 4.5.1990 as W.P.(C).No.21854 of 2006 -6- employees of the Board . In the Pooran Chandra Pandey's case (Supra) 34 petitioners who were daily wage employees had prayed for regularisation of their services in the U.P State Electricity Board. The Apex court held that the decision in Umadevi's case (supra) cannot be applied to a case where regularisation has been sought for in pursuance to Article 14 of the Constitution. The Apex Court observed that the writ petitioners have been working from 1985 i.e they have put in about 22 years service and it will surely not to be reasonable if their claim for regulrisation is denied even after such a long period of service. The Apex Court further held that apart from discrimination, Article 14 of the Constitution of India will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularisation 9. In the counter-affidavit dated 10.11.2006 filed by the 1st respondent it is admitted that the petitioners were working as teachers and ayahs on honorarium basis for the last more than 20 years and that vide Government order dated 19.9.1995 the honorarium amount were fixed at Rs. 1000 and 500 respectively. The training qualification acquired by the petitioners was accepted by the Government and were allowed to continue in the respective posts. It is also admitted that the petitioners were given training and that they also doing very same duties and W.P.(C).No.21854 of 2006 -7- responsibilities vis-a-vis teachers recruited through Kerala Public Service Commission and through employment Exchanges that the teachers recruited through Public Service Commission are given the pay scale of 3350-5275 (Ext.p4) and temporary hands appointed through employment exchanges are also receiving salary on the same scale of pay. In paragraph 8 of the counter affidavit it is averred that as the petitioners have long years of service (more than 20 years) and they were engaged on contract basis, they were allowed to continue in the job on honorarium basis and that the enhancement of honorarium of the petitioners is under consideration of the Government It is also averred that the constitutional bodies are available for recruitment of candidates for jobs namely P.S.C. and employment exchange and it is not feasible to appoint employees out of way and therefore the request of the petitioners for regularisation in service is not admissible. 10. When the petitioners moved this Court by filing O.P 2408/2001 for getting pay of the nursery school teachers as fixed by the Government this Court issued a direction to the respondents to consider the case of the petitioners in the light of the Ext.P5 Supreme Court decision 11. Ext.P6 is the detailed representation submitted by the petitioners as directed by this Court. The petitioners requested the Government to regularise their service taking into account their long W.P.(C).No.21854 of 2006 -8- service and the social backwardness and in the context of recommendation for regularisation by various departments. Petitioners submitted that their social backwardness are exploited by the government and in negation and spirit of the direction of this Court the Government passed Ext.P6 order rejecting their request. It is also submitted by the petitioners that the temporary hands appointed through employment exchange are getting higher salary who are deputed recently though they are doing the same work for a long period . 12. The petitioners challenged Ext.P7 order as violative of Article 14, 39 and 46 of the Constitution of India. According to them there is no good reason for the Government to pass Ext.P7 in a free casual manner without assigning any reasons It is also submitted by the petitioners that the question of regularisation as well as the principle of equal pay for equal work ought to have been considered by the respondents. 13. I have already stated that the petitioners, permanent and temporary hands under the Department had been performing similar duties and responsibilities. In fact the work carried on by the petitioners is of a permanent nature. None of the petitioners have discontinued their service. They worked for a long period of more than 23 years. There was no occasion to disengage them while they were continuing in service years after years . It is not in dispute about the fact that there has been disparity W.P.(C).No.21854 of 2006 -9- in emoluments and in other working conditions There is clear distinction between the three set of employees. It is too much to say that the deployment of the petitioners is of a casual and voluntary nature The Government would not be expected of them to cling to the technicalities of forms rather than to see the substance and realities of existing facts and prevailing situation which is of their own making I have also discussed and stated the proposition equal pay for equal work declared by the Supreme Court in a catene of decisions. Some of them were referred above. Following the said principle stated by the Supreme Court, it is declared that employees who have put in long service cannot be denied the benefit of regularisation 14. The learned Government Pleader submitted that as per G.O (Rt) 812/97/SCSTDD dated 13.02.1997 the above said scheme had been transferred to the Local Self Government Department under the Panchayat Raj and Nagarpalika Act, that the authority to make appointments as Nursery School teacher and Ayah had also been transferred to the Panchayat Committee for Local Self Government concerned from 1997-98 In the counter affidavit the respondents have no case that the duties and responsibilities of nursery School teachers and ayahs recruited through Kerala Public Service Commission , employment Exchanges and on contract basis are different. From a plain reading of W.P.(C).No.21854 of 2006 -10- the counter- affidavit it is clear that all these three set of employees are doing very same duties and responsibilities . This Court is concerned mainly with the nursery school teachers and ayahs appointed about long years before the Government Order dated 13.02.1997 transferring the scheme to Local Self Government Department. The counsel for the petitioners submitted that till date the honorarium is paid to the petitioners and similarly situated persons by the Social Welfare Department, Government of Kerala. So the contention of the Government pleader that the competent authority to fix the pay scale , order for regularisation etc is the Local self Government Department is not sustainable. The contention of the Government Pleader may stand in the case of appointments made after 1997-98. This Court is concerned with the appointments made by the Government approximately about 24 years back 15. In the said circumstances this Court directs the respondents that the petitioners and similarly situated employees would be treated at par with temporary employees recruited through employment exchange. It is declared that the petitioners and other similarly situated teachers and ayahs are entitled to the same pay scale and other allowances granted to temporary hands employed through employment exchanges. It is further declared that the petitioners are entitled to all the service benefits as W.P.(C).No.21854 of 2006 -11- aforesaid from the date of Ext.P7 order viz. 1.3.2006 The 1st respondent is further directed to absorb/regularise the services of the petitioners and similarly situated persons irrespective of the age bar which would stand waived. The petitioners are entitled to the same service benefits which are extended to permanent employees recruited through the Kerala Public Service Commission from the date of regularisation of their services. The order for regularisation shall be passed within a period of 3 months from today. In the result Ext.P7 order is quashed. This writ petition is allowed The petitioners are entitled to Rs. 1000/- each as costs. . (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C).No.21854 of 2006 ---------------------------- ORDER 1st November, 2009