Kerala High Court
State Of Kerala vs R.Suresh Kumar on 18 May, 2021
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,
0
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,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
2 P.BABU,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
3 D.UDAYAKUMAR,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
4 G.MADHU,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
5 R.THULASEEDHARAN NAIR,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
6 G.SUDARSANA KURUP,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
7 M.SHAJAHAN,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
8 L.THULASEEDHARAN,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
9 N.PRADEEP,
GARDENER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM- 695562.
W.A Nos.1340 & 1447 of 2019
2
10 B.CHANDRAN, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
11 M.VIJAYAN, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
12 R.ANILKUMAR, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
13 A.K.AZEEM, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
14 G.S.MADHUSOODANAN ASARY, HELPER,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
15 A.LEELA, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
16 K.LALIKUTTY, SEEPER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
17 BABY GIRIJA, GARDENER, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE,
THIRUVANANTHAPURAM- 695562.
18 THE KERALA STATE COUNCIL FOR SCIENCE,
TECHNOLOGY AND ENVIRONMENT, REPRESENTED BY ITS
MEMBER SECRETARY, SASTHRA BHAVAN, PATTOM,
THIRUVANANTHAPURAM- 695562.
19 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE,
REPRESENTED BY ITS REGISTRAR, PALODE,
THIRUVANANTHAPURAM- 695562.
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:
W.A Nos.1340 & 1447 of 2019
3
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
0
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,
KARIMANCODE.P.O.,
PACHA PALOD,
THIRUVANANTHAPURAM - 695 562
2 R.THULASEEDHARAN NAIR
GARDENER GR-II,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
W.A Nos.1340 & 1447 of 2019
4
3 G. SUDARSANA KURUP
GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
4 M.SHAJAHAN, GARDENER GR-II,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
5 L.THULASEEDHARAN
GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
6 V.RENJAN
GARDENER GR-II, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
7 G.S. MADHUSUDHANAN ASARI
OFFICE ATTENDER GRADE - II, JAWAHARLAL NEHRU
TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
8 K.LALIKUTTY
SWEEPER, JAWAHARLAL NEHRU TROPICAL BOTANIC
GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE.P.O.,
PACHA PALODE,
THIRUVANANTHAPURAM - 695 562
9 THE KERALA STATE COUNCIL FOR SCIENCE,
TECHNOLOGY AND ENVIRONMENT,
REPRESENTED BY ITS MEMBER SECRETARY,
SASTHRA BHAVAN,
PATTOM,
THIRUVANANTHAPURAM - 695 004
W.A Nos.1340 & 1447 of 2019
5
10 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN
RESEARCH INSTITUTE
REPRESENTED BY ITS REGISTRAR,
PALODE,
THIRUVANANTHAPURAM - 695 562
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:
W.A Nos.1340 & 1447 of 2019
6
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
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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.
W.A Nos.1340 & 1447 of 2019
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
W.A Nos.1340 & 1447 of 2019
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
