IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 20240 of 2000(H)
1. K.V.JOBY
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.K.A.ABRAHAM
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :28/07/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
--------------------------------------
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS
-------------------------------------
Dated the 28th July, 2008
J U D G M E N T
Koshy,J.
In the writ appeal as well as in the original petition, main
issue to be considered is whether the staff in the office of the
Advocate General are entitled to overtime allowance on a par with
the staff of the Legislature Secretariat. The prayer in
O.P.No.20240/2000 is as follows:
In these circumstances, it is humbly prayed that
this Hon’ble Court may be pleased to call for the records
leading to payment of overtime allowance to the staff in
the Legislature Secretariat and in the office of the
Advocate General and(i) to issue a writ of mandamus directing the
respondents to issue orders for
enhancement of overtime allowance of theW.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS2
staff in the AG’s office on a par with the
rate that is being paid to the staff in the
Legislature Secretariat as per Ext.P1
order at the rate of Rs.55/- per day and
any further enhancement that may be
made for time to time.(ii) to issue a writ of mandamus or any other
writ order or direction commanding the 1st
respondent to implement the decision in
Ext.P7 enhancing the overtime allowance of
the staff in the AG’s office on a par with
that is being paid to the staff in the
Legislature Secretariat retrospectively with
effect from 28.3.1994, the date on which
this Hon’ble Court in Ext.P2 judgment
directed to consider and properly refix the
overtime allowance payable to the staff of
the Advocate General’s office and to pay
arrears with effect from 28.3.1994.On the basis of the claim raised by the petitioner, Ext.P2 order
was passed by the Division Bench of this Court in
C.M.P.No.318/1994 in W.A.No.886/1992. When
W.A.No.886/1992 and connected cases were posted, it was
noticed that there were many defects. Even process was not
served to send notice to the respondents. The Division Bench
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS3
noticed that there are considerable lapse on the part of the staff
of the Advocate General’s office. Therefore, Court ordered an
enquiry and various orders were passed on the basis of the
enquiry report. In C.M.P.No.318/1994 in W.A.No.886/1992, this
Court passed the following directions:
(1) The Advocate General will constitute an
Inspectorate with an Addl.Advocate General
or a Senior Govt.Pleader as head of such
Inspectorate. They will bestow proper
attention to the functioning of the court
sections including follow up action in court
files. (2) Government should take immediate
action to prepare Office Manual for the
office of the Advocate General. For this
purpose Government may request the High
Court to make available the services of a
judicial officer. (3) immediate action has to
be taken to improve the accommodation and
other amenities in the office of the Advocate
General. (4) Sufficient number of staff will
have to be appointed in the office taking
into account the existing workload, after
conducting a proper study. (5) The
statement in the report of the Chief
Secretary that the staff doing overtime work
in the Advocate General’s office cannot beW.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS4
treated on a par with the staff doing
overtime work in the Legislature
Secretariat, cannot be accepted. There are
no reasons to deny to such staff in the
Advocate General’s office, the remuneration
that is being paid to the staff who are doing
overtime work in the Legislature
Secretariat. It is stated in the objection that
the Legislative Assembly will be in session
for about 180 days in a year. The staff
doing overtime work in that Secretariat is
given Rs.35/- per day. The High Court is in
session for about 210 days. The overtime
work done by the Advocate General’s office
staff is not at all different from the overtime
work that is being done by the Legislature
Secretariat staff. Government will have to
consider these aspects and properly refix
the compensatory allowance payable to the
staff in the Advocate General’s office.”Later, even though the above writ appeal relating to salary of
High School Assistants was disposed of on merit by the Division
Bench, it was specifically mentioned that Ext.P2 proceedings
will continue separately and independently as directions in
Ext.P2 has nothing to do with the subject matter in that writ
appeal. Against Ext.P2, an appeal was filed by the State before
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS5
the Honourable Supreme Court. While the matter was pending
before the Honourable Supreme Court, matter was discussed
with the Advocate General and the Government and a draft
settlement arrived at. Ext.P7 Minutes shows that discussions
were held in the Chamber of Minister (Food, Tourism and Law),
wherein apart from the Minister, Additional Advocate General,
Law Secretary, 16 representatives of the employees of the
Advocate General’s office also participated. Thereafter,
improvement in the staff pattern was made on the basis of the
above minutes. Rs.80/- overtime allowance paid at the time of
passing Ext.P2 order was enhanced to Rs.200/- per month with
effect from 9.1.1996 on the basis of Ext.P7 Minutes, Clause 3,
request was made to the Finance Minister to enhance the
fixation of overtime allowance and it was subsequently enhanced
of Rs.400/- per month. It is also decided to constitute an
Inspectorate with eight members for looking into the problems of
the functioning of the Advocate General’s Office. The matter was
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS6
informed to the Honourable Supreme Court. Considering all
these aspects, Supreme Court passed Ext.P6 order, which is as
follows:
“In view of the Fax message received from
the Advocate General by the learned
counsel for the State of Kerala which we
find from the paper book, nothing survives
so far as this petition is concerned and it
will be disposed of as such.”2. Since proceedings in C.M.P.No.318/1994 which leads to
Ext.P2 order was continuing, an interim order was passed in
C.M.P.No.33940/2000 by a learned Single Judge of this Court
and that was challenged in W.A.No.2890/2002. Various C.M.P.’s
were filed in furtherance of the order in C.M.P.No.318/1994 in
W.A.No.886/1992 as it was the starting point of an independent
litigation. Since O.P.No.22040/2000 was filed for the main
relief, disposal of the O.P. will dispose of all other appeals and
petitions as the question to be decided in all these proceedings is
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS7
whether the employees in the office of the Advocate General are
entitled to overtime allowance on a par with the staff of the
Legislature Secretariat. It is not disputed that the staff pattern
and salary are almost similar in Secretariat, PSC and Advocate
General’s office. This is further evident from the Government
orders on the subject. But in Secretariat and PSC, employees
are not paid overtime wages. It is the contention of the
Government Pleader that in view of the draft settlement
mentioned in the orders in the S.L.P., the order in Ext.P2 has
become practically infructuous. After settlement, the
Honourable Supreme Court observed that ‘nothing survives’ to
be done in furtherance of Ext.P2. Even in Ext.P2, only
Government was directed to consider these aspects while
refixing the payment to the staff of the Advocate General’s office
and there was no direction that they should be paid in par with
the staff of the Legislature Secretariat. On behalf of the State, it
was also pointed out that staff of the Legislature Secretariat are
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS8
paid overtime allowance only during the days when Legislative
Assembly is in session. If the session continues in the night,
they have to work full time in the night also and they are paid
overtime allowance on daily basis. The overtime work of the
staff of the Advocate General’s office is only regarding the
preparation of the cause list and that is a regular work and they
are paid overtime allowance on a monthly basis. Only on the
sitting days of the Court, they have to prepare the cause list
working overtime. Only the same amount was paid to the High
Court employees who are entrusted with the work of preparing
cause list. It is also pointed out that after computerisation, the
number of hours they have to sit and quantity of work is also
reduced. Even though it is true that the cause list can be
finalised after the court functioning, they may have to sit for 1 to
11/2 hours more for preparing the cause list and doing the
incidental work. The learned counsel for the petitioner also
pointed out that the Advocate General, who was the
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS9
Administrative head has recommended a higher rate of
compensatory allowance considering the work of the staff of the
Advocate General’s office regarding preparation of cause list.
But the whole question is whether the overtime work in the
Legislative Secretariat only when Assembly is in session and the
regular overtime work of the employees of the Advocate
General’s office are similar or not and whether petitioners are
entitled to the same rate of overtime allowance as is paid to the
employees of Legislative Secretariat on the basis of the principle.
‘Equal pay for equal work’. In this connection, we refer to the
three member Bench decision of the Apex Court in State of
Haryana and others v. Charanjit Singh and others (AIR
2006 SC 161), wherein it was held that the principle of ‘equal
pay for equal work’ based on Article 14 has no mechanical
application. Qualification, nature of work, quality of work, the
effort required in a work, object and responsibility of work,
functional difference etc. are to be decided by an expert body
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS10
and materials should be there that work is equal in all
parameters. Apex Court held as follows:
“A mere nomenclature designating a person as
say a carpenter or a craftsman is not enough to
come to the conclusion that he is doing the
same work as another carpenter or craftsman
in regular service. The quality of work which is
produced may be different and even the nature
of work assigned may be different. It is not just
a comparison of physical activity. The
application of the principle of “equal pay for
equal work” requires consideration of various
dimensions of a given job. The accuracy
required and the dexterity that the job may
entail may differ from job to job. It cannot be
judged by the mere volume of work. There may
be qualitative difference as regards reliability
and responsibility. Functions may be the same
but the responsibilities made a difference.
Thus normally the applicability of this principle
must be left to be evaluated and determined by
an expert body. These are not matters where a
writ court can lightly interfere. Normally, a
party claiming equal pay for equal work should
be required to raise a dispute in this regard. In
any event the party who claims equal pay for
equal work has to make necessary averments
and prove that all things are equal. Thus,
before any direction can be issued by a Court,W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS11
the Court must first see that there are
necessary averments and there is a proof. If
the High Court, is on basis of material placed
before it, convinced that there was equal work
of equal quality and all other relevant factors
are fulfilled it may direct payment of equal pay
from the date of the filing of the respective
Writ Petition. In all these cases, we find that
the High Court has blindly proceeded on the
basis that the doctrine of equal pay for equal
work applies without examining any relevant
factors.”The Honourable Supreme Court even has justified fixation of
different pay for the same category of workers based on higher
qualification as held in M.P.Rural Agriculture Extension
Officers Association v. State of M.P. and another (AIR
2004 SC 2020) and G.K.Mohan and others v. Union of
India (2007 AIR SCW 6801). Here the Legislature Secretariat
workers are paid overtime allowance only for the days they
actually worked overtime and that too only when the Legislative
Assembly is in session and for other days they will not get the
allowance. The nature of work are entirely different.
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS12
Preparation of cause list is a routine work whereas employees in
Legislative Secretariat should be alert to take any file which was
called for and answer queries during the time when assembly is
in session. At the time of filing the O.P., the daily overtime
allowance payable for the staff of the Legislature Secretariat was
Rs.55/- per day of work and for the staff of the Advocate
General’s office was Rs.200/- per month. It is submitted that
there were various revisions and at present, the Legislature
Secretariat employees are given Rs.100/- per day when the
assembly is in session whereas it is Rs.400/- per month for the
staff of the Advocate General’s office. The rate of enhancement
of overtime allowance is more than the previous rate. The
payment of overtime allowance for the employees of the
Legislature Secretariat are entirely on a different basis. The
nature of work are also different. The nature of overtime work is
not equal in all respects and on the date when there is no
assembly session, they are not paid the allowance, whereas, this
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS13
is a monthly payment given to the employees of the Advocate
General’s office as work of preparation of cause list is a regular
work. They need not work through out night like the employees
of Legislative Secretariat when assembly is in session.
Therefore, we are of the opinion that a general direction cannot
be given to enhance the overtime allowance on par to the
overtime allowance given to the staff of the Legislature
Secretariat. At the same time, considering the
recommendations of the Advocate General, we are of the
opinion that all these matters should be considered by the next
Pay Commission. Writ appeals, O.P., Civil Miscellaneous
Petitions and all interim applications are disposed of accordingly.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
prpW.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS14
J.B.KOSHY & P.N.RAVINDRAN, JJ.
————————————–
W.A.NO.2890 OF 2002,
O.P.NO.20240 OF 2000,
C.M.P.NO.318 OF 1994
IN
W.A.886 OF 1992
&
CONNECTED PETITIONS————————————-
J U D G M E N T
28th July, 2008