Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943 WA NO. 1340 OF 2019 AGAINST THE ORDER/JUDGEMENT IN WP(C) 22348/2012 OF HIGH COURT OF KERALA APPELLANT/1ST RESPONDENT IN W.P(C): STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001. BY B.VINOD, SR.GOVERNMENT PLEADER RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN W.P(C):
1 R.SURESH KUMAR, 2 P.BABU, 3 D.UDAYAKUMAR, 4 G.MADHU, 5 R.THULASEEDHARAN NAIR, 6 G.SUDARSANA KURUP, 7 M.SHAJAHAN, 8 L.THULASEEDHARAN, 9 N.PRADEEP, 10 B.CHANDRAN, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 11 M.VIJAYAN, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 12 R.ANILKUMAR, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 13 A.K.AZEEM, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 14 G.S.MADHUSOODANAN ASARY, HELPER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 15 A.LEELA, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 16 K.LALIKUTTY, SEEPER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 17 BABY GIRIJA, GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, 18 THE KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA BHAVAN, PATTOM, 19 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, REPRESENTED BY ITS REGISTRAR, PALODE, BY ADVS. SRI.V.MADHUSUDHANAN STANDING COUNSEL (B/O) SRI.C.K.KARUNAKARAN SC FOR (TBGARI)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2021, ALONG WITH WA.1447/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943 WA NO. 1447 OF 2019 AGAINST THE ORDER/JUDGEMENT IN WP(C) 34025/2016 OF HIGH COURT OF KERALA APPELLANT/1ST RESPONDENT IN W.P(C): STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM BY B.VINOD, SR.GOVERNMENT PLEADER RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN W.P(C):
1 D.UDAYAKUMAR GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALOD, 2 R.THULASEEDHARAN NAIR GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 3 G. SUDARSANA KURUP GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 4 M.SHAJAHAN, GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 5 L.THULASEEDHARAN GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 6 V.RENJAN GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 7 G.S. MADHUSUDHANAN ASARI OFFICE ATTENDER GRADE - II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 8 K.LALIKUTTY SWEEPER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PACHA PALODE, 9 THE KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004 10 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN RESEARCH INSTITUTE REPRESENTED BY ITS REGISTRAR, PALODE, BY ADVS. SRI.V.MADHUSUDHANAN STANDING COUNSEL (B/O) SRI.C.K.KARUNAKARAN SC FOR (TBGARI)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2021, ALONG WITH WA.1340/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS & K.BABU, JJ. ----------------------------------------------- W.A No.1340 of 2019 [Arising out of the judgment dated 04-12-2017 in W.P(C) No.22348 of 2012] & W.A No.1447 of 2019 [Arising out of the judgment dated 04-12-2017 in W.P(C) No.34025 of 2016] ----------------------------------------------- Dated this the 18th day of May, 2021
JUDGMENT
K.BABU, J.
The common judgment dated 04-12-2017 in W.P(C) Nos.22348/2012 & 34025/2016, rendered by the learned Single Judge of this Court, is under challenge in these intra court appeals filed under Sec.5(i) of the Kerala High Court Act. Writ Appeal No.1447/2019 arises from the judgment in W.P(C) No.34052/2016. The judgment in W.P(C) No.22348/2012 is impugned in Writ Appeal No.1340/2019.
2. The State of Kerala, represented by the Secretary to
Government, Science and Technology Department, the respondent No.1 in both the writ petitions, is the common appellant. The writ petitioners and the other official respondents in the writ petitions are the respondents in these appeals.
3. Since the subject matter is one and the same, these appeals are disposed of by way of a common judgment.
4. The parties will be referred to as per their status in the writ petitions.
5. Since the relevant documents relied on by the parties are
almost common in both the writ petitions reference is made to the documents produced in W.P(C) No.22348/2012 except where specific mention is made to the documents referred to in the other writ petition.
6. The petitioners are Gardeners/helpers/sweepers employed in the Jawaharlal Nehru Tropical Botanic Garden and Research
Institute, 3rd respondent, [‘JNTBGRI’ for short]. All of them commenced their service under the 3rd respondent on different dates between 1995 and 1998 on consolidated wages. In 1998 they
were placed in a 'scale of pay' on temporary basis. By office order
dated 17-03-2021 (Ext.P31) the services of the petitioners were regularised with effect from 26-08-2000. As per order dated 03-08-2004 (Ext.P32) the date of effect of the regularisation of the
petitioners was altered to 03-08-2004. As per order dated 23-01-2006 (Ext.P34) the pay of the petitioners and others was fixed in the scale of Rs.2750-4625. Whereas, some other Gardeners were placed in the scale of pay of Rs.3050-5230. On realising the anomalies in the pay scales, as per Ext.P36 dated 02-08-1999, the petitioners were also granted the pay in the scale of Rs.3050-5230. The petitioners were later granted assessment promotion on completion of five years as per Ext.P37 order dated 08-08-2012 and they were placed in the scale of pay of Rs.6680-10790.
7. The orders, fixing the pay of the petitioners in the revised
scale and granting assessment promotion, as per Exts.P35 and P37 were set aside as per Exts.P38 to P54 orders issued on 24-08-2012. The petitioners challenge the orders at Exts.P38 to P54.
8. The respondents pleaded that grave irregularities were reported in the fixation of pay of employees under the 2 nd
respondent. According to the respondents, the Government constituted a finance inspection wing as per order dated 03-05-2007 to enquire into the irregularities and the enquiry revealed serious irregularities in fixing the pay of State scale
employees right from 1983. The enquiry further revealed that, undue monetary benefits were given to the employees under the 2 nd respondent by way of giving assessment promotions contrary to the service rules applicable in the State. The State inspection team recommended recovery of the excess amount drawn by 155 employees including the petitioners. The Government examined the matter and after taking a lenient view decided not to recover the excess pay and allowances drawn by the employees for the period
upto 31-12-2007. But rectification was ordered. It was further decided that excess benefit paid after 01-01-2008 would have to be calculated on the basis of the corrected pay and to recover the excess pay drawn by the petitioners. The pay and allowances of the petitioners and other employees were refixed in accordance with the
recommendation of the committee. The respondents further pleaded that the petitioners were initially engaged on daily wages for maintenance of garden and were given contract appointment on consolidated pay and thereafter they were placed in 'scale of pay' and further the Government regularised their services as per Ext.P32 order. While regularising the services of those employees they were placed as junior most in the respective categories and on
conditions specified in Ext.P33 order. The scale of pay of the petitioners was revised from Rs.2650-4650 to Rs.3050-5230 with effect from the date of their regularisation, in accordance with Ext.P36 order dated 02-08-2009, on the basis of recommendations of the committee for rectification of anomalies. The pay scale as per the said Government order was proposed to employees, who were in
regular service as on 02-08-1999. The petitioners were given appointment from 03-08-2004 and they were eligible only for the
pay scale proposed for future recruitments. According to the respondents, the fixation of the pay in the revised higher scale of Rs.5250-8390 was irregular and also the assessment promotion granted in the next grade in the higher time scale was also irregular. On the basis of the recommendation of the inspection committee to the effect that pay scale sanctioned to the petitioners were irregular, the Government refixed their pay as per Exts.P38-P54. According to the respondents, the petitioners were not entitled to even regularisation and it was only because of the lenient view taken by the Government that they were regularised.
9. Heard Sri.B.Vinod, learned Senior Government Pleader
appearing for the appellant/1st respondent in W.P(C), in both the Writ Appeals, Sri.V.Madhusoodanan, learned counsel appearing for the respondents 1 to 17 in W.A No.1340/2019 and respondents 1 to 8 in W.A No.1447/2019 and Sri.C.K.Karunakaran, learned counsel appearing for the respondent No.19 in W.A No.1340/2019 and respondent No.10 in W.A No.1447/2019.
10. While the writ petition was pending, the respondents
issued order dated 30-12-2013 regularising the petitioners with effect from 26-08-2000 as per Ext.P15 order produced in W.P(C) No.34025/2016 and they were given the scale of pay of Rs.2650- 4150 and the sweepers and helpers were given the scale of pay of Rs.2610-3680.
11. The claim of the petitioners is that, they are entitled to be
placed in the scale of pay of Rs.3050-5250 with effect from 26-08-2000. It is common ground that one set of gardeners are paid higher scale than the petitioners.
12. The claim of the petitioners is on the basis of the principle
of “equal pay for equal work”. Such a claim is raised by the petitioners on the ground that, the duties and responsibilities, rendered by them and that of the employees who are given higher pay, are the same. It is further contended that no justifiable reasons have been stated for placing the petitioners in a lower scale. It is not in dispute that the petitioners perform work which besides being functionally equal is of the same quality and sensitivity as that of the employees placed in higher pay scales. It is also not in dispute that the volume of work being performed by the petitioners and that performed by the employees getting higher pay scale is also the same. There is no difference in the level of responsibility. It is also not in dispute that there is no difference in the qualification for the post in which the petitioners are employed with that of the employees with higher pay. The Apex Court in State of Punjab v. Jagjit Singh [(2017) 1 SCC 148], following a series of precedents, considered the claim of the employees who claim higher wages under the principle of “equal pay for equal work” held that, there cannot be any disparity in the scale of pay within the same group of
persons. The Apex Court deduced parameters for applying the principle of “equal pay for equal work” in paragraph No.42 of the judgment. The pleadings of the petitioners, which are in conformity with parameters deduced by the Apex Court are not specifically disputed by the respondents. The only challenge of the respondents is that the petitioners were regularised only because of the benevolence of the Government, which is not a ground to deny equal pay for equal work.
13. The respondents have not relied on any substantial ground
to place the petitioners in a lower level than those who are in higher level within the same group when the duties and responsibilities attached to the posts are same and the qualification for the appointment is also the same. When unequal pay based on no rational classification is made those aggrieved can seek enforcement of the right to equality. The orders at Exts.P38 to P54 amount to negation of equality in violation of the fundamental rights of the petitioners for equality before law and equality of opportunity in matters relating to employment.
14. The learned Single Judge declared that the petitioners are
entitled to get their pay fixed on par with other gardeners, who are working in the scale of pay of Rs.3050-5230/-. The learned Single Judge also held that Ext.P15 in W.P(C) No.34025/2016, to the extent it denied the petitioners scale of pay of Rs.3050-5230 is liable to be set aside and the learned Single Judge directed to grant all consequential benefits to the petitioners with effect from 26-08-2000.
15. We are of the firm view that the findings of the learned
Single Judge require no interference. Since the impugned judgment
was passed on 04-12-2017, the respondents are directed to provide all benefits granted as per the impugned judgment to the petitioners within three months from the date of receipt of a copy of this
judgment.
With these observations and directions, the above Writ Appeals will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/- K.BABU, JUDGE KAS