R. SURESHKUMAR and Others v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939** ## **WP(C).No. 22348 of 2012 (P) -------------------------------------------** ## **PETITIONER(S) : -------------------------** |**1.**|**R.SURESHKUMAR,**|||| |---|---|---|---|---| ||**GARDENER, JAWAHARLAL**||**NEHRU TROPICAL BOTANIC GARDEN**|| ||**AND RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM.**|||| |**2.**|**P.BABU,**|**-DO-**||**-DO-**| |**3.**|**D.UDAYAKUMAR,**|**-DO-**||**-DO-**| |**4.**|**G.MADHU,**|**-DO-**||**-DO-**| |**5.**|**R.THULASEEDHARAN NAIR, -DO-**|||**-DO-**| |**6.**|**G.SUDARSANA KURUP,**||**-DO-**|**-DO-**| |**7.**|**M.SHAJAHAN,**|**-DO-**||**-DO-**| |**8.**|**L.THULASEEDHARAN, -DO-**|||**-DO-**| |**9.**|**N.PRADEEP,**|**-DO-**||**-DO-**| |**10.**|**B.CHANDRAN,**|**-DO-**||**-DO-**| |**11.**|**M.VIJAYAN,**|**-DO-**||**-DO-**| |**12.**|**R.ANILKUMAR,**|**-DO-**||**-DO-**| |**13.**|**A.K.AZEEM,**|**-DO-**||**-DO-**| |**14.**|**G.S.MADHUSOODANAN ASARY,**|||| ||**HELPER, -DO-**||**-DO-**|| |**15.**|**A.LEELA,**|**-DO-**||**-DO-**| |**16.**|**K.LALIKUTTY,**|||| ||**SEEPER,**|**-DO-**||**-DO-**| **..2/-** **..2..** **WP(C).No. 22348 of 2012 (P) ------------------------------------------17. BABY GIRIJA, -DO-DO-** ## **BY ADVS. SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004.** **3. THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, REPRESENTED BY ITS REGISTRAR, PALODE, THIRUVANANTHAPURAM 695 562.** **R1 BY GOVERNMENT PLEADER SMT.A.C.VIDHYA R2 BY ADV. SRI.GEORGE ZACHARIAH, S.C R3 BY ADV. SRI.C.K.KARUNAKARAN, S.C BY ADV. SRI.V.A.MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2017, ALONG WITH W.P(C).NO. 34025 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 22348 of 2012 (P)** ## **-------------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO.BG.3/95 DATED 6.4.1995 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE ORDER NO.BG.3/96 DATED 9.4.1996 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.BG.3/97 DATED 11.4.1997 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.BG.3/97 DATED 7.5.1997 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.BG.3/97 DATED 18.10.1997 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 16.4.1998 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 7.10.1998 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 27.12.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 15.4.1998 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 15.4.1998 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 13.10.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER NO.BG.3/96 DATED 9.4.1996 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 17.4.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF THE ORDER NO.BG.3-114/95 DATED 1.9.1995 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 17.8.1998 ISSUED BY THE 3RD RESPONDENT.** ## **WP(C).No. 22348 of 2012 (P)** ## **-------------------------------------------** **EXHIBIT P17 TRUE COPY OF THE ORDER NO.BG.3/2000 DATED 14.8.2000 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P18 TRUE COPY OF THE ORDER NO.BG.3/2001 DATED 27.2.2001 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P19 TRUE COPY OF THE ORDER NO.BG.3/95 DATED 1.9.1995 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P20 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 30.8.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P21 TRUE COPY OF THE ORDER DATED 21.8.2000 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P22 TRUE COPY OF THE ORDER NO.BG.3/96 DATED 28.6.1996 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P23 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 27.7.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P24 TRUE COPY OF THE ORDER NO.BG.3/98 DATED 31.3.1998 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P25 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 23.3.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P26 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 23.3.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P27 TRUE COPY OF THE ORDER NO.BG.3/2000-01 DATED 8.6.2000 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P28 TRUE COPY OF THE ORDER NO.BG.3/117/95 DATED 1.9.1995 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P29 TRUE COPY OF THE ORDER NO.BG.3/96 DATED 2.9.1996 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P30 TRUE COPY OF THE ORDER NO.BG.3/99 DATED 25.11.1999 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P31 TRUE COPY OF THE ORDER NO.TBGRI/DR/90/2001 DATED 17.3.2001 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P32 TRUE COPY OF THE G.O(MS)NO.01/2004/STED DATED 3.8.2004 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P33 TRUE COPY OF THE COUNCIL (M) ORDER NO.86/04/KSCSTE DATED 4.12.2004 ISSUED BY THE 2ND RESPONDENT.** ## **WP(C).No. 22348 of 2012 (P)** ## **-------------------------------------------** **EXHIBIT P34 TRUE COPY OF THE ORDER NO.A1/2006 DATED 23.1.2006 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P35 TRUE COPY OF THE ORDER NO.A1.209/2006 DATED 3.4.2006 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P36 TRUE COPY OF THE GOVERNMENT ORDER G.O(P)NO.82/99/STED DATED 2.8.1999 TOGETHER WITH RELEVANT PORTION OF THE REPORT. EXHIBIT P37 TRUE COPY OF THE ORDER NO.JNTBGRI/ESTT/2/59/2011 DATED 8.8.2001 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P38 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.** - **EXHIBIT P39 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** - **EXHIBIT P40 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER.** - **EXHIBIT P41 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER.** - **EXHIBIT P42 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 5TH PETITIONER.** - **EXHIBIT P43 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 6TH PETITIONER.** - **EXHIBIT P44 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 7TH PETITIONER.** - **EXHIBIT P45 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 8TH PETITIONER.** - **EXHIBIT P46 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 9TH PETITIONER.** - **EXHIBIT P47 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 10TH PETITIONER.** - **EXHIBIT P48 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 11TH PETITIONER.** - **EXHIBIT P49 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 12TH PETITIONER.** - **EXHIBIT P50 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 13TH PETITIONER.** ## **WP(C).No. 22348 of 2012 (P)** ## **-------------------------------------------** ## **EXHIBIT P51 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 14TH PETITIONER.** - **EXHIBIT P52 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 15TH PETITIONER.** - **EXHIBIT P53 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 16TH PETITIONER.** - **EXHIBIT P54 TRUE COPY OF THE ORDER DATED 24.8.2012 ISSUED BY THE 3RD RESPONDENT TO THE 17TH PETITIONER.** **EXHIBIT P55 TRUE COPY OF THE COMMITTEE REPORT DATED 30.8.2009 TOGETHER WITH THE RECOMMENDATION PERTAINING TO THE REFIXATION OF PAY OF GARDENERS/HELPERS/SWEEPERS OF THE 3RD RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** **Msd.** ## _**P.V.ASHA, J.**_ -------------------------- **==> picture [233 x 79] intentionally omitted <==** ## _**JUDGMENT**_ Since the issue arising in these cases is one and the same, these two Writ Petitions are disposed of by a common judgment. The parties and documents are as referred to in W.P(c) No.22348 of 2012 unless otherwise specifically mentioned. 2. The petitioners, who are working as Gardeners in Jawaharlal Nehru Tropical Botanic Garden and Research Institute (`JNTBGRI' for short), are aggrieved by the reduction in their scale of pay as per orders Exts.P38 to P54. 3. Petitioners 1 to 13 are Gardeners, petitioners 14 and 15 are Helpers and petitioners 16 and 17 are Sweepers working under the JNTBGRI, the 3[rd] respondent. All of them commenced their service under the 3[rd] respondent on different dates between 1995 and 1998 on consolidated wages. Since the year 1998, all of them were placed in a scale of pay on temporary basis in the respective posts. As per Ext.P31 dated 17.03.2001, the 3[rd] respondent regularised the services of 50 contract W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 2 employees including the petitioners w.e.f 26.08.2000. As per Ext.P32 order dated 3.8.2004, the date of effect of regularisation was altered and it was ordered that the regularisation of the petitioners would be w.e.f 6.8.2004. Ext.P34 order was issued fixing the pay of the petitioners and others on 23.1.2006 by which they were placed in the scale of pay of Rs.2750-4625. Sl.No.25 onwards are the petitioners. 4. At the same time, other gardeners were placed in the scale of pay of Rs.3050-5230. As per Ext.P36 orders the petitioners were also granted the pay of Rs.3050-5230. Thereafter, the petitioners were granted assessment promotion on completion of 5 years as per Ext.P37 order issued on 8.8.2012 and they were placed in the scale of pay of Rs.6680-10790. Sl.No.18 onwards in Ext.P37 order are the petitioners. The assessment promotion is made on completion of 5 years of service. However, as per Exts.P38 to P54 orders issued on 24.08.2012, Exts.P35 and 37 orders fixing the pay of the petitioners in the revised scale as well as on assessment promotion were cancelled. This writ petition was filed at that stage challenging Exts.P37 to P54. 5. The 1[st] respondent has filed a counter affidavit stating that W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 3 grave irregularities were reported in the fixation of pay of employees under the 2[nd] respondent; the Government constituted a finance inspection wing as per order dt.3.5.2007 to enquire into the same; after verification of the files, it was found that out of the 220 Service Books verified, 50 employees came under CSIR scale of pay; whereas 161 were under the State scales of pay. In fixing the pay of State's scale employees, serious irregularities were noted right from 1983 pay revision as the scales of pay allowed were above that of the corresponding categories in the Government Departments whereby undue monetary benefits were given; assessment promotions were given to several employees contrary to the service rules applicable in the State; the State Inspection Team recommended to recover the excess pay drawn by 155 employees including the petitioners; the Government thereafter issued rectification orders on 3.1.2009 and after taking a lenient view ordered not to recover the excess pay and allowances drawn by the employees including the petitioners for the period upto 31.12.2007. However, it was decided that excess benefit paid after 1.1.2008 would have to be calculated on the basis of the corrected pay; the excess pay drawn by the petitioners were thus not recovered; their pay and allowances were refixed in accordance with the W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 4 recommendation of the committee; it is further stated that the petitioners, who are usually engaged on daily wages for maintenance of garden were given contract appointment on consolidated pay and their term of engagement was extended; later they were placed in scale of pay; the Government thereafter regularised 61 employees as per Ext.P32 order in 18 categories in the 2[nd] respondent w.e.f 26.8.2000; the 1[st] respondent had issued orders regularising the service of the contract employees as the junior most in the respective categories and on conditions specified in Ext.P33 order; the petitioners' scale of pay was revised from Rs.2650-4650 to Rs.3050-5230 with effect from the date of regularisation, in accordance with Ext.P36 order dated 2.8.2009 on the basis of the recommendations of the committee for rectification of anomalies in pay fixation of employees in R&D centres; the pay scale as per the Government Order was proposed to employees, who were in regular service as on 2.8.1999. It is stated that the petitioners who were given regular appointment from 3.8.2004 are eligible only for the pay scale proposed for future recruitments. According to the 1[st] respondent, the fixation of the pay in the revised higher scale of Rs.52508390 was irregular. The assessment promotion granted in the next grade in W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 5 a higher time scale was also irregular. The inspection committee found that the petitioners were not eligible for the pay scale sanctioned irregularly. The Government approved the report of the committee and on the basis of the letter dated 3.5.2010, their pay was re-fixed as per Exts.P38 to P54. It is stated that the regularisation of the petitioners was on certain conditions in which it is stated that the petitioners would be granted pay in tune with the employees who were in service as on 2.8.1999 based on Ext.P36. According to the respondents, the petitioners were not entitled to even regularisation and it was only because of the lenient view which was taken by the Government that they were regularised. 6. The 3[rd] respondent has also filed a statement in tune with the Government orders reiterating their stand in the orders issued. 7. When the writ petition was pending, the respondents issued order dated 30.12.2013 regularising the petitioners w.e.f 26.8.2000, the original date, which is produced as Ext.P15 in the W.P(c).No.34025 of 2016. While issuing this order, they were given the scale of pay of Rs.26504150. Sl.Nos.20 to 37 are the petitioners. The sweepers and helpers are given the scale of pay of Rs.2610-3680. The petitioners have filed the writ W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 6 petition for a declaration that they are entitled to be placed in the scale of pay of Rs.3050-5250 w.e.f .26.08.2000. 8. The 3[rd] respondent has filed counter affidavit while the petitioner has filed a reply affidavit in this writ petition. 9. As rightly contended by the learned counsel for the petitioners relying on the judgment of the Apex Court in **State of Punjab v. Jagjit Singh** [(2017) 1 SCC 148] there cannot be any disparity in the scale of pay within the same group of persons. It is pointed out that one set of gardeners are paid higher scale while another set of gardeners are paid lower scale, without any justification. 10. Even otherwise there cannot be 2 different set of scales of pay within the same group of employees when the duties and responsibilities attached to the post are the same and qualification for appointment is the same. The orders issued by the Government by fixing the pay of the petitioners and others in the year 2000/2004 by placing them in the reduced scale, on whatever ground it may be, amount to negation of equality in violation of their fundamental rights for equality before law and equality of opportunity in matters relating to employment. There cannot be any W.P(C) Nos.22348 of 2012-P 34025 of 2016-C 7 difference in the scale of pay for those working in the same post and performing the same duties on the ground of the date of appointment also, in normal circumstances. The contention of the respondents that the petitioners got their appointment regularised only because of the benevolence of the Government also does not hold good once the Government decided to regularise their appointment. In the above circumstances, the orders Exts.P38 to P54 in W.P.(C) No. 22348/2017 are set aside. It is declared that the petitioners are entitled to get their pay fixed on par with other gardeners, who are working under the 3[rd] respondent, in the scale of pay of Rs.3050-5230/-. Ext P15 order to the extent it denied the petitioners the scale of pay of Rs.3050-5230/- is set aside. The petitioners shall therefore be granted all consequential benefits with effect from the date viz 26.08.2000 as per Ext.P15 order produced in W.P(c).No.34025 of 2016. This shall be done within a period of four months from the date of receipt of a copy of this judgment. The writ petitions are allowed accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_