R. Rajamma and V. Appukuttan Nair v. State of Kerala and The Kerala Development Corporation for Christian Converts from Scheduled Castes and the Recommended Communities Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **WP(C).No.13749 of 2018** ## **PETITIONERS:** **1 R.RAJAMMA AGED 62 YEARS, D/O K.BHASKARA PILLAI, 'UTHRADOM', TC 8/1607-5, KUSAKKODE, THIRUMALA P.O., THIRUVANANTHAPURAM - 695006. 2 V.APPUKUTTAN NAIR AGED 62 YEARS, S/O R.VELAYUDHAN NAIR, 'ORMA BHAVAN', OPP.H.L.STUDIO, STUDIO ROAD,NEMAN P.O., THIRUVANANTHAPURAM - 695020.** **BY ADVS. SRI.S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR SRI.JYOTHISH D.MONY** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, BACKWARD COMMUNITY DEVELOPMENT (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE KERALA DEVELOPMENT CORPORATION FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD, REPRESENTED BY ITS MANAGING DIRECTOR, NEAR RAILWAY STATION, NAGAMPADOM, KOTTAYAM - 686 002.** **WP(C).No.13749 of 2018** **2** **3 THE MANAGING DIRECTOR THE KERALA DEVELOPMENT CORPORATION FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD, NEAR RAILWAY STATION, NAGAMPADOM,KOTTAYAM - 686 002. 4 THE ADMINISTRATIVE OFFICER THE KERALA DEVELOPMENT CORPORATION FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD, NEAR RAILWAY STATION, NAGAMPADOM,KOTTAYAM - 686 002.** **BY ADV. SRI.RON BASTIAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-082019, THE COURT ON 16-08-2019 DELIVERED THE FOLLOWING:** **WP(C).No.13749 of 2018** **3** ## **ANU SIVARAMAN, J** **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =** ## **W.P(C) No.13749 of 2018** ## **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of August, 2019** ## **JUDGMENT** This writ petition is filed seeking the following prayers: - _(i) Issue a writ of certiorari or such other appropriate writ or order quashing Ext.P10 order rejecting the benefit of the 9[th] pay revision to the petitioners;_ - _(ii) Issue a writ of mandamus or such other appropriate writ or order commanding the 1[st] respondent to extend the benefit of the 9[th] pay revision to the petitioners within a limited time frame as may be fixed by this Hon'ble Court;_ - _(iii) Issue an order declaring that the petitioners are entitled to be granted the benefits of the 9[th] pay revision when similarly placed employees are granted the benefit;_ - _(iv) Issue a writ of mandamus or such other appropriate writ or order directing the respondents to refix the pay of the petitioners as per the 9[th] pay revision and to grant them arrears of pay with interest at the rate of 12% from the date of Ext.P4 order;_ 2. The 1[st] petitioner entered service under the 2[nd] respondent Corporation on 23-06-1983 as a Typist, retired from service on attaining the age of superannuation on 30-11-2013, while working as Upper Division Clerk. The 2[nd] petitioner, entered service on **WP(C).No.13749 of 2018** **4** 22-07-1981 and retired on 30-09-2013 as Upper Division Clerk. 3. It is stated that no pension is payable to employees of the 2[nd] respondent Corporation. The benefit of the 9[th] pay revision was denied to the petitioners on the ground that their appointment was not against the sanctioned posts. The 3[rd] respondent had submitted Ext.P5 request to the Government to extend the benefit to all employees including the petitioners as they had been appointed pursuant to a regular selection process. It is stated that all other employees had been granted the benefit, but the petitioners had been discriminated against and the benefit had been rejected in their case. 4. The learned counsel for the petitioners placed reliance on a decision of this Court in _**Joseph Didakose v. Cochin Port Trust [2017(3)KLT SN 50].**_ Relying on the principle of 'equal pay for equal work', this Court held that even temporary employees, who are carrying out the very same duties, are entitled to regular scales of pay and revision of pay as in the case of regular employees. It is stated that the petitioners, who have admittedly undergone a regular process of selection, cannot be discriminated against in the matter of **WP(C).No.13749 of 2018** **5** grant of pay revision benefits. It is stated that the petitioners had admittedly been in service for more than 30 years and had been granted the benefits of earlier pay revision orders as well. It is stated that it is only in respect of the 2011 pay revision that the benefit was denied to the petitioners. 5. A counter affidavit has been placed on record by the 1[st] respondent admitting the fact of appointments and the continuance of the petitioners. It is stated that the 2[nd] respondent is a state owned public sector undertaking and the regular employees of the Corporation are given the benefits of periodic pay revisions. It is stated that by Ext.P4 Government Order, the Government had made applicable the pay revision to employees in the posts specifically mentioned in the said order. It is stated that as on 01-07-2009 there were four Upper Division Clerks including the petitioners working in the Corporation. However, by Ext.P4 Government Order, pay revision benefits had been extended only to two Upper Division Clerks who were working against sanctioned posts. It is stated that since the posts against which the petitioners were working, were not **WP(C).No.13749 of 2018** **6** sanctioned by the Government, the benefits could not be extended to the petitioners. 6. A Reply affidavit has also been placed on record, stating that in respect of two other posts which are not covered by Ext.P4 also, that is, the post of Office Assistant and part time Sweeper which are not sanctioned posts, the benefits had been made available while denying the same to the petitioners. It is, therefore contended that the refusal to grant the benefits to the petitioners is arbitrary and illegal. 7. The learned Standing Counsel appearing for respondents 2 and 3 would submit that the issue has been raised before the Government. It was only due to the refusal on the part of the Government to grant the benefits to the petitioners that the benefits could not be extended. 8. I have considered the contentions advanced. The petitioners are admittedly persons who had undergone a due selection process and had been appointed in the year 1981. After completing 32 years of service, they had retired from service in the year 2013. It is contended **WP(C).No.13749 of 2018** **7** in the writ petition that they had been granted the benefits of earlier revisions of pay which had been made applicable to the employees of the 2[nd] respondent. This aspect is not controverted in the counter affidavit as well. 9. This Court in _**Joseph Didakose's case (supra)**_ has held that the concept of equal pay for equal work is applicable even where the appointment is on contract basis or on consolidated pay on provisional, provided the work carried out by such employee is the same as the work undertaken by a regular employee who is granted all the benefits. In the instant case, the respondents have no case that the petitioners did not carry out the same work as those persons who had been appointed against the sanctioned posts. 10. As a matter of fact, persons working against posts which are not included in Ext.P4 which, even according to the Government, were not sanctioned posts, that is, the post of Attender and Part time Sweeper have been given the benefit in Ext.P10 order. It is, therefore, clear that it is only the petitioners who had been singled out for denying the benefits of the pay revision on the ground that the posts **WP(C).No.13749 of 2018** **8** against which they worked were not sanctioned posts. Even if that be so in view of the decision of the Apex Court in _**State of Punjab v. Jagjit Singh [(2017) 1 SCC 148]**_ and which has been followed by this Court in _**Joseph Didakose's case (supra)**_ , I am of the opinion that the rejection of the petitioners claim would be untenable. The impugned order is, therefore, set aside. There will be a direction to the respondents to release the benefits of the 9[th] pay commission to the petitioners. The amounts shall be calculated and disbursed to the petitioners within a period of two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** ## **JUDGE** KAS **WP(C).No.13749 of 2018** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE MEMO DATED 22.06.1983 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P2: TRUE COPY OF THE MEMO DATED 03.07.1981 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P3: TRUE COPY OF THE CERTIFICATE DATED 26.03.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P4: TRUE COPY OF THE G.O.(M.S.) NO.5/2015 BCD DATED 30.01.2015 OF THE 1ST RESPONDENT. EXHIBIT-P5: TRUE COPY OF THE PROCEEDINGS NO.E1/1358/11/KSDC DATED 06.12.2016 OF THE 3RD RESPONDENT. EXHIBIT-P6: TRUE COPY OF THE PROCEEDINGS NO.983/B2/2016 BCD DATED 23.03.2017 OF THE 1ST RESPONDENT. EXHIBIT-P7: TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 12.01.2017. EXHIBIT-P8: TRUE COPY OF THE ORDER OF THE HUMAN RIGHTS COMMISSION DATED 02.03.2017. EXHIBIT-P9: TRUE COPY OF THE JUDGMENT DATED 11.10.2017 IN W.P.(C).NO.32438/2017. EXHIBIT-P10: TRUE COPY OF THE GO(RT) NO.126/2017/BCD DATED 25/11/2017. EXHIBIT-P11: TRUE COPY OF THE APPLICATION UNDER RTI ACT DATED 19.01.2018. EXHIBIT-P12: TRUE COPY OF THE REPLY DATED 20.02.2018. EXHIBIT-P13: TRUE COPY OF PROCEEDINGS OF THE 2ND RESPONDENT DATED 24.01.1996.** **WP(C).No.13749 of 2018** **10** **EXHIBIT-P14:** **TRUE COPY OF PROCEEDINGS NO.B1/2016/98/DCCC DATED 02.01.1999 OF THE 2ND RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS: NIL** //TRUE COPY// PA TO JUDGE