STATE OF WEST BENGAL AND ORS. ETC.

MONlRUJJAMAN MULLICK AND ORS. ETC.

JULY 19, 1996

jKULDIP SINGH ANDS. SAGHlR AHMAD, JJ.] B

Se1vice Law :

Educational institulions--lnstructors of 11011-fonnal education centres in State of West Bengal-Claim for scales of pay as admissible to p1imwy C school teachers-Held, cannot M allowed as apmt from basic qualitative differences bettt.:een the t1vo institutions, even t/ze nature of wo1k of instntctors of non- Jonna! education centres and the prbna1y school teachers is not identical-Constitution of India A1t. 39(d)-Equal pay for equal wm*.

The respondents \\'ere Vi'orking as instructors in various non-formal D education centres in the State of West Bengal. The said centres were opened by the State Government implementing the Scheme of the Central Government to impart non-formal education to the children in the age group of 9/11 year belonging to Vt'eaker sections of society. These centres \Vere parttime institutions and the instructors were engaged to teach the E children for two hours a day on a fixfd honorarium of Rs. 105 per n1onth at the p'rimary level and Rs. 125 per month at the upper primary level. The instructors filed a writ petition in the High Court, claiming same scales of pay and allowances as \\'ere admissible and \Vere being paid to primary school teachers, on the basis of the principle of "equal pay for equal work".

The High Court decided i'1 favour of the writ petitioners. Aggrieved, the F State filed the present appeal.

Allowing the appeal, this Court

HELD : The non-formal education centres cannot be equated with the primary schools which are regularly run by the Education Department G of the State Government. Apart from the basic qualitative differences between the two institutions, even the nature of work of the instructors of non-formal institutions and the primary school teachers is not identical.

The method of appointment, the source of recruitment, method of teach ing, hours of teaching and the mode of payment are entirely different. Jn H 749

A the facts and circumstances of the case, the High Court fell into patent error in applying the principle ul' "equal pay for e11ual work". The judgments of the High Co1; rt are set aside. The writ petitions filed by the instructors shall stand dismissed. (753-B-C; F-GJ

Deihi Development Ho1ticulture Employees Union v. Delhi Administra- B tion, Delhi and 01'., [1992] 4 sec 99, relied on.

CIVIL APPELLATE JURISDICTION: Ci, il Appeal No. 4195 of 1994 Etc.

From the Judgment and Order dated 28.6.93 of the Calcutta High C Court in A. No. 367 or 1991.

D.P. Gupta, Solicitor General, M.S. Gujral, J.K. Mitter, Syed Ali Ahmad, Mohan Pandey, J. Kar, Rana Mukherjee, Goodwill Indeevar, R.N.

Tripathi, Ms. Sarla Chandra, Vijay Panjwani and Ms. Indira Sawhney for D the appearing parties.

The Judgment/ Order of the Court was delivered by

KULDIP SINGH, J.

Monirujjaman Mullick and other private respondents, in the appeal herein) were \Vorking as instructors in various E non-formal education centres in different districts in the State of West Bengal. They approached the High Court by way of a petition under Article 226 of the Constitution of India seeking a direction - based on the principle of "equal pay for equal work" - that they were entitled to the same scales of pay and allowances as were admissible and being paid to the primary school teachers. A learned single Judge of the High Court allowed F writ petition. Appeal filed by the Slate of West Bengal was disposed of with the following directions :

11The writ petitioners who are not in regular employment elsewhere and who have the minimum qualification prescribed for the primary school teachers arc entitled to the same scale of pay and allowances as admissible to the primary school teachers from the date of their initi:tl appointment and further that they are also entitled to annual increments in the pay-scale in accordance with law; but their claim for absorption in the department as regular primary school teachers cannot be sustained and therefore stands rejected.

STATE v. M.MULLICK[KULDIP S!NGH.J.] 751

It is made clear that the services of such non-formal teachers will A be liable to stand automatically terminated as and when the nonformal education scheme is discontinued in this State.

Persons similarly placed should also be given the same bcnelit to avoid further litigation in regard to the self-same issue."

This appeal by the State of West Bengal is against the judgment of the learned single Judge and of the Division Bench of the High Court dated June 28 of 1993.

We may briefly state the facts of the case. Government of India introduced a scheme in the year 1974-75 for imparting non-formal education to the children in the age group of 9/11 years who were either school drop-outs or did not go to school. The scheme provided for the opening of non-formal education centres (parttime) by the State Government with the help of Cenkal Government grant. West Bengal Government took a policy decision on December 8, 1978 lo implement the scheme. Subsequently the State Government formulated a new scheme regarding nonformal education, which became operative with efft.:ct fro1n October 4,

1989. The nonformal centres were part-time institutions. The instructors were given a fixed honorarium of Rs. 105 per month at the primary level and Rs. 125 per month at the upper primary level. Person with a mctivation to serve the communityparticularly the weaker sections - were appointed instructors. They were required to teach the children for two hours a day.

The centres were run by the Panchayat Samilies in rural areas and by the Municipal Committees/Corporations in urban areas. There were no specific buildings or sitedor the centres. The instructors could use any site or building belonging to a social organisation or a local authority.

The Division Bench of the High Court applied the doctrine of "equal pay for equal work" on the following reasoning :

"From the booklet published and distributed by the Primary Education Directorate regarding\formal (Prathamic Siksha) and G non-formal (Bidhikukta Siksha), it appears that the purposes of both the streams being to help attain human values through practical literacy in language, elementary arithmetic, awareness for maintaining personal and public health and good environment, social awareness, scientific outlook to. get rid of prejudices etc., the syllabus ano the books prescribed for formal and nonformal H

education are almost same 'vith the uitimate goal of equipping the boys an<l girls for entry into class Vin regular High or .I unior High School.

lt is t!~11s clear and \Ve arc also of considered opinion that neither stream is inferior to Lhe other and that the duties, functions and responsibilities of the teachers of the formal and non-formal education arc alike, if not heavier on the side of the non-formal strcan1. 11

Mr. Dipankar Gupta learned Solicitor General, appearing for the Stale C of West Bengal has contended that the non-formal education centres were not a part of the regular educational system of the Stale of WeslBengal. These

centres \Vere started under a policy decision of the central Government \vhich was implemented by the Stale of West Bengal to help educate the children belonging to \Vcakcr sections of the society. These centres \Vere part-tin1c by nature and the instructors \Vere paid any honorariun1. They \Vere not ap- D pointed lo a regular pay scale and were not paid any salary. Even the teaching in the centres \\'as not for a full educe:itional-day~ it \Vas only for t\vo hours. According to Mr. Gupta \Vhcn the Schen1e provided for t\VO hours of non-formal teaching at the part-ti1ne centres by the part-tin1e instructors, \Vho \Vere paid a mere honourarium the High Court \Vas not justified in enlarging the scope E of the Scheme in the exercise of its power of judicial review under Article 226 of the Constitution of!ndia. Mr. Gupta relied upon the judgment of this Court in Delhi _Developnzent Honiculture En1ployees [inion\'. Delhi Adniit.istration, Delhi and 01'., [ 1992] 4 SCC 99. P.B. Sa want, J. speaking for the Cour1 observed as under :

"Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and lo claim on the basis of the said employment a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. ft is \\Tong to approach the problems of those employed under such scheme with a view to providing them with full employment and guaranteeing equal pay for equal work.

These concepts in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get lo keep them from starvation. They would benefit a few al the cost of the many starving poor for whom the schemes are meant. Thal would also force the

STATE v. M. MULLICK[KULDIP SJNGH.J.] 753

State to wind up the existing schemes and forbid them from A introducing the new ones, for want of resources.

We are of the view that the non-formal educational centres cannot be equated with the primary schools which are regularly run by the Education Department of the State Government. Apart from the basic qualitative differences between the two institutions even the nature of work of the B non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different. In the facts and circumstances of this case the High Court fell into patent error in applying the principle of "equal pay for equal work".

The appeal is allowed and the judgment of the learned single Judge of the High Court and the impugned judgment of the Divisit~1 Bench of the High Coml are set aside. The writ petitions filed by the respondents before the High Court .shall stand dismissed. No costs.

Al! the I. As are disposed of.

C.A. No. 9395 of 1996 @ SLP No. 22561 of 1994

Special leave granted.

We have, by a separate judgment pronounced today, allowed Civil E Appeal 4195 of 1994 State of West Bengal & Ors. v. Monimjjaman Mullick & Ors., and have set aside the Division Bench judgment of the Calcutta High Court (State of West Bengal v. Monintjjilman Mullick, 97 CWN 1075.

We therefore, allow the appeal and set aside the impugned judgment of the Division Bench of the High Court which is based on Moni111jjaman's F case. No costs.

CA. No. 4194 of 1994.

We have by a separate judgment pronounced today in C.A. 4195 of 1994, set aside the Division Bench judgment of the Calcutta High Court in G State of West Bengal v. Monimjjaman Mullick & On", (reported in 97 CWN

page 1075). This appeal has been filed by the non-formal education teachers association against the A1onin1jja111an's case. This appeal has become infructuous and as such ls dismissed.

R.P.

Appeal dismissed.