IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1588 of 2009()
1. STATE OF KERALA REP.BY ITS
... Petitioner
2. THE DIRECTOR, SCHEDULED CASTE
Vs
1. T.C.VALSAMMA, W/O.GEORGE,
... Respondent
2. KUNJUMOL, W/O.KUTTAN,
3. KUNJAMMA KUNJUMON, W/O.KUNJUMON,
4. K.CHELLAMMA, W/O.BHASKARAN.C.,
5. P.MEENAKSHI, D/O.SANKARAN,
6. KARTHU P.A., W/O.A.K.CHANDRAN,
7. USHA.I.I., D/O.ITTIRI,
8. THANKA K.M., W/O.VASU,
9. GOWRIKUTTY, W/O.MANIYAN,
10. LAKSHMI.T., W/O.SIVAN P.T.,
11. M.K.BHANUMATHI, W/O.M.T.MOHANAN,
12. V.S.KOUSALLIA, W/O.IYYAPPAN,
13. OMANA M.K., W/O.KUNJAPPAN.P.A.,
14. AMMINI M.I., W/O.T.K.RAVI,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.THAMPAN THOMAS
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :09/03/2010
O R D E R
"C.R"
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No.1588 of 2009
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Dated this the 9th day of March, 2010
JUDGMENT
Ravindran,J.
The appellants are the respondents in W.P(C)No.21854 of 2006.
The respondents are the petitioners therein. The brief facts of the
case are as follows.
2. The respondents are Teachers and Ayahs working in various
Kindergartens run by the appellants. They commenced service in the
Balavadies/Feeding Centres in the year 1984 after they were locally
recruited otherwise than through the Employment Exchanges/Kerala
Public Service Commission. Initially Teachers were being paid
Rs.500/- per mensem as honorarium and Ayahs were being paid
Rs.100/- per mensem as honorarium. Thereafter the honorarium was
enhanced to Rs.1,000/- and Rs.500/- respectively for Teachers and
Ayahs upon the Balavadies being upgraded as Kintergartens. They are
presently being paid honorarium depending on their length of service.
Teachers who are matriculates having five years of service are paid a
honorarium of Rs.2,000/- per mensem, Teachers who are matriculates
having more than five years of service are paid a honorarium of
W.A.No.1588 of 2009
-:2:-
Rs.2,100/- per mensem and Teachers with ten years of service are
paid a honorarium of Rs.2,200/- per mensem. Teachers who are not
matriculates and have less than five years of service are paid
Rs.1,400/- per mensem, Teachers who have more than five years of
service are being paid Rs.1,600/- per mensem and Teachers who have
ten years of service are being paid Rs.1,800/- per mensem as
honorarium. The honorarium being paid to Ayahs has been revised
from Rs.500/- to Rs.1,000/- per mensem.
3. The respondents had earlier filed O.P.No.2408 of 2001 in this
Court claiming regularisation in service as Nursery Teachers and Ayahs
and the scale of pay of Nursery Teachers. By Ext.P5 judgment
delivered on 13-8-2004 a learned single Judge of this Court disposed of
the said writ petition with a direction to the Government to consider
their grievances and to take a decision thereon. The respondents
thereafter filed Ext.P6 representation before the Director, Secheduled
Caste/Scheduled Tribe Development Department. The said
representation was forwarded to the Government for disposal. The
Government thereafter passed Ext.P7 order dated 1-3-2006 rejecting
their claim for regularisation in service. The Government however,
permitted the respondents to continue in service on a provisional basis,
on humanitarian grounds. Aggrieved thereby the respondents filed
W.A.No.1588 of 2009
-:3:-
W.P(C)No.21854 of 2006 seeking the following reliefs:-
i) to issue a writ of certiorari or any other appropriate
writ, order or direction, calling for the records in this
case and quash Exhibit P7 and all other connected
proceedings.
ii) to declare the petitioners are nursery teachers
entitled for the pay scale prescribed by the
government for the nursery teachers as that of the
pay scale prescribed for Public Service Commission
hands.
4. The respondents contended that as they have been working as
Teachers/Ayahs in Kindergartens for the past more than 20 years they
are entitled to be regularised in service. They also contended that
while similarly placed Nursery School Teachers are paid higher salary,
they are paid only a consolidated amount by way of honorarium and
that it is discriminatory and arbitrary. The respondents contended that
under Article 46 of the Constitution of India the State is bound to
promote the educational and economic interests of the weaker sections
of the people and in particular of the Scheduled Castes and Scheduled
Tribes, that the Balavadies where they are working were established
for catering to the educational needs of the persons belonging to
Scheduled Castes and Scheduled Tribes and therefore they are entitled
to be regularised in service. Relying on Article 39 they contended that
they are entitled to the scale of pay of regular recruits as they are
W.A.No.1588 of 2009
-:4:-discharging the same functions.
5. The appellants resisted the writ petition contending, inter alia,
that Balavadies-cum-Feeding Centres under the Scheduled Castes and
Scheduled Tribes Department were started in the year 1979, that
thereafter Nursery School Teachers and Ayahs were engaged on
honorarium basis, that the Balavadies were later upgraded into LKG
and UKG and the honorarium was increased to Rs.1000/- and Rs.500/-
respectively by Government order dated 19-9-1995. It is also stated
that all the Teachers were given training in Bala Sevika Training
Institute, Trivandrum, where they had attended the orientation course
for Nursery Teachers for a few days. It is also contended that only
Nursery School Teachers and Ayahs appointed through the Kerala
Public Service Commission and Employment Exchanges are given the
scales of pay of those posts and that the respondents, who were locally
recruited and engaged on contract basis, are entitled only to payment
of honorarium. The appellants also contended that as the respondents
were engaged on contract basis and were not engaged after a regular
selection process, they are not entitled to be regularised in service.
The appellants further contended that the respondents are not entitled
to salary in the scale of pay of regular Nursery School Teachers and
Ayahs appointed through the Kerala Public Service
W.A.No.1588 of 2009
-:5:-Commission/Employment Exchanges.
6. By judgment delivered on 8-4-2009 the learned single Judge
held that the respondents are entitled to regularisation in service with
effect from 1-3-2006, the date of Ext.P7 order and that they are also
entitled to salary and allowances and other benefits granted to
temporary hands employed through Employment Exchanges with
effect from 1-3-2006. It was also held that the respondents are
entitled to the same service benefits which are extended to permanent
employees recruited through the Kerala Public Service Commission
from the date of regularisation of their services. Aggrieved thereby the
appellants have filed this writ appeal.
7. We heard Sri.P.Santhosh Kumar, learned Special Government
Pleader appearing for the appellants and Sri.Thampan Thomas, the
learned counsel appearing for the respondents. We have also gone
through the pleadings and materials on record. It is not in dispute that
the respondents were recruited locally and were engaged on contract
basis. They were not recruited through the Employment
Exchanges/Kerala Public Service Commission after following the
prescribed procedure. The learned single Judge however, directed
regularisation of their service relying on the decision of the Apex Court
in U.P.State Electricity Board v. Pooran Chandra Pandey, (2007)
W.A.No.1588 of 2009
-:6:-11 SCC 92. The learned single Judge held that as the appellants have
put in more than 25 years of service, the rejection of their claim for
regularisation is arbitrary and unreasonable. The learned single Judge
also held that as they are discharging the same duties and functions as
regularly recruited Nursery School Teachers/Ayahs, they are entitled to
the scale of pay of Nursery School Teachers/Ayahs recruited through
the Kerala Public Service Commission.
8. A Constitution Bench of the Apex Court has, in Secretary,
State of Karnataka and others v. Umadevi and others (2006) 4
SCC 1, held that unless the appointment is in terms of the relevant
rules and after a proper competition among qualified persons, it would
not confer any right on the appointee. It was held that if the
appointment is a contractual appointment, the appointment comes to
an end at the end of the contract and that if the engagement was on
daily wages or casual basis, the same would come to an end when it is
discontinued. The Apex Court also held that merely because a
temporary employee or a casual wage worker is continued for a long
time beyond the term of his appointment, he will not be entitled to be
absorbed in regular service or made permanent merely on the strength
of such continuance, if the original appointment was not made by
following a due process of selection as envisaged in the relevant rules.
W.A.No.1588 of 2009
-:7:-It was held that the High Court acting under Article 226 of the
Constitution should not ordinarily issue directions for absorption,
regularisation or permanent continuance unless the recruitment itself
was made regularly and in terms of the constitutional scheme.
Board v. Pooran Chandra Pandey ((2007) 11 SCC 92), a Bench of
two Hon’ble Judges of the Apex Court held that Umadevi’s case
(supra) cannot be applied mechanically and without adverting to the
facts of the case as the slight difference in facts can make Umadevi’s
case (supra) inapplicable to the facts of that case. The Apex Court
held that as others similarly placed had been given regularisation
pursuant to the decision taken by the U.P.State Electricity Board on
28.11.1996 to regularise the workers working on daily wage basis
before 4.5.1990 in existing posts, it would be aribtrary and
discriminatory to deny the benefit of such regularisation to some
others who were likewise working on daily wage basis before 4.5.1990.
Later, a larger Bench of the Apex Court held in Official Liquidator v.
Dayanand (2008 (10) SCC 1) that the observations in U.P.State
Electricity Board v. Pooran Chandra Pandey (supra) are obiter and
that the same should neither be treated as binding by the High Courts,
nor should they be relied upon or made the basis for bypassing the
W.A.No.1588 of 2009
-:8:-principles laid down by the Constitution Bench of the Apex Court in
Umadevi’s case (supra). It was reiterated by the Apex Court in
Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC
408 that creation and abolition of posts and regularisation in service
are purely executive functions and the court cannot create a post
where none exists or issue directions to absorb or continue casual
employees in service or direct payment to them of salaries of regular
employees.
10. In Punjab Water Supply & Sewerage Board v. Ranjodh
Singh and others ((2007) 2 SCC 491), the Apex Court after a
detailed analysis of the case law on the point held that the observation
in paragraph 53 of Umadevi’s case (supra) that as a one-time
measure, regularisation of employees can be made, was made, in
relation to appointments which were only irregular in nature and not
illegal appointments. It was held, relying on the decision of the Apex
Court in National Fertilisers Ltd. v. Somvir Singh ((2006) 5 SCC
493) that a mandamus to regularise an employee in service can be
issued only if he or she has a legal right to continue in service. The
very same view was reiterated by the Apex Court in State of
Karnataka v. G.V.Chandrasekhar, (2009) 4 SCC 342. In Pinaki
Chatterjee and others v. Union of India and others ((2009) 5 SCC
W.A.No.1588 of 2009
-:9:-193), the Apex Court held that persons appointed on casual basis and
not against any cadre post cannot claim regularisation in service
especially when such appointment is not in compliance with Articles 14
and 16 of the Constitution of India.
11. It is not in dispute that the respondents were not engaged
after following the prescribed procedure wherein an equal opportunity
was extended to others also to participate in the selection. The fact
that the respondents were engaged only on contract basis is not in
dispute. It is also not in dispute that the respondents were not
appointed against sanctioned cadre posts. In our opinion the
respondents, who were thus engaged only on a casual basis against
non cadre posts without following the prescribed procedure and
without a public advertisement inviting applications, cannot claim that
they should be regularised in service merely for the reason that they
have been working on contract basis for the past more than 25 years.
We also notice that in the writ petition the respondents had not sought
the relief of regularisation in service. In such circumstances we hold
that the respondents are not entitled to claim regularisation in service.
12. We shall now deal with the claim of the petitioners for
payment of salary and allowances at the rates paid to regularly
appointed Nursery School Teachers/Ayahs. The qualifications
W.A.No.1588 of 2009
-:10:-prescribed for regular appointment as Nursery School Teacher is a pass
in the SSLC Examination and Nursery School Training. The
respondents, admittedly, do not possess the said qualification. Though
some among them have passed the SSLC Examination, they have not
undergone the Nursery School Training. They have only attended and
undergone the Orientation Course for Nursery School Teachers/Ayahs
of a short duration of less than one week at the Balasevika Training
Institute. The respondents were also not regularly appointed after
following the prescribed procedure, namely through the Kerala Public
Service Commission/Employment Exchanges. Though in Kishori
Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139, the Apex
Court had held that the principle of equal pay for equal work for men
and women embodied in Article 39(3) is not capable of being enforced,
later, the Apex Court in Randhir Singh v. Union of India, (1982) 1
SCC 618 held that the principle of ‘equal pay for equal work’ is not an
abstract doctrine and can be enforced by reading it into the doctrine of
equality enshrined in Articles 14 and 16 of the Constitution. The Apex
Court has however, held that similarity in designation or quantum of
work is not determinative of equality in the matter of pay scales and
that factors like the source and mode of recruitment/appointment,
qualifications, nature of work, responsibilities etc. have to be
W.A.No.1588 of 2009
-:11:-considered while considering the question whether the principle of
equal pay for equal work should be applied. (See the decisions of the
Apex Court in State of Haryana v. Jasmer Singh, (1996) 11 SCC 77
and Official Liquidator v. Dayanand (2008) 10 SCC 1). It has been
held that there may be differences in educational or technical
qualifications which may have a bearing on the skills which the holders
of jobs bring to their job although the designation of the job may be
the same. In Official Liquidator v. Dayanand (2008) 10 SCC 1, it
was also held that any direction to compel the Government to pay the
salary and allowances as was being paid to regular employees to casual
employees will compel the Government to sanction additional posts so
as to facilitate payment of salaries and allowances and that cannot be
achieved by applying the principle equal pay for equal work.
13. The Apex Court has in Indian Drugs & Pharmaceuticals’
case (supra) held as follows:-
“49. Before parting with this case, we would like
to state that although this Court would be very happy if
everybody in the country is given a suitable job, the fact
remains that in the present state of our country’s
economy the number of jobs are limited. Hence,
everybody cannot be given a job, despite our earnest
desire.
50. It may be mentioned that jobs cannot be
W.A.No.1588 of 2009
-:12:-created by judicial orders, nor even by legislative or
executive decisions. Jobs are created when the
economy is rapidly expanding, which means when there
is rapid industrialisation. At present, the state of affairs
in our country is that although the economy has
progressed a little in some directions, but the truth is
that this has only benefited a handful of persons while
the plight of the masses has worsened. Unemployment
in our country is increasing, and has become massive
and chronic. To give an example, for each post of a
peon which is advertised in some establishments there
are over a thousand applicants, many of whom have
MA, MSc, MCom or MBA degrees. Recently, about 140
posts of primary school teachers were advertised in a
district in Western Madhya Pradesh, and there were
about 13,000 applicants i.e. almost 100 applicants for
each post. Large-scale suicides by farmers in several
parts of the country also show the level of
unemployment. These are the social and economic
realities of the country which cannot be ignored.
51. One may be very large hearted but then economic
realities have also to be seen. Giving appointments
means adding extra financial burden to the national
exchequer. Money for paying salaries to such
appointees does not fall from the sky and it can only be
realised by imposing additional taxes on the public or
taking fresh loans, both of which will only lead to
additional burden on the people.
52. No doubt, Article 41 provides for the right to work,
but this has been deliberately kept by the Founding
W.A.No.1588 of 2009
-:13:-Fathers of our Constitution in the directive principles and
hence made unenforceable in view of Article 37,
because the Founding Fathers in their wisdom realised
that while it was their wish that everyone should be
given employment, but the ground realities of our
country cannot be overlooked. In our opinion, Article 21
of the Constitution cannot be stretched so far as to
mean that everyone must be given a job. The number
of available jobs are limited, and hence courts must take
a realistic view of the matter and must exercise self-
restraint.”
14. In Executive Director, I.T.School Project v. Saranya,
2009(3) KLT 824, a Division Bench of this Court, to which one of us
(K.Balakrishnan Nair,J.) was a party, while considering the question
whether a writ in the nature of mandamus can be issued directing the
Government to create adequate posts of qualified teachers in
Government/Aided High Schools to impart education and training to
the students in the subject ‘Information Technology’, held as follows:-
“9. The directions issued in paragraph 16 also could
not have been issued by this Court while exercising its
power under Article 226 of the Constitution of India. It is
for the government to take a decision in these matters.
Whether the existing scheme for imparting Information
Technology education in the schools should be revised
etc. are matters exclusively within the realm of policy of
W.A.No.1588 of 2009
-:14:-the Government. In this context, it is apposite to quote
the following words of Benjamin N. Cardozo in his
“Judicial Process”:-
” The Judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure. He
is not a knight-errant roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to
exercise a discretion informed by tradition,
methodized by analogy, disciplined by system,
and subordinated to ‘the primordial necessity of
order in the social life’.”
10. If the directions of the learned single Judge are
implemented, the same will have ramifications on the
budget allocations already made. This Court cannot issue
any direction which will have such effect. See the
decision of the Apex Court in State of Himachal
Pradesh and another Vs. Umed Ram Sharma and
other [AIR 1986 SC 847], wherein it was held as follows:-
” 21. There are detailed instructions regarding the
preparation, submission etc. of applications, for re-
appropriation. The sum and substance of the said
requirement are that total sanction of bill for a project is
within the domain of the legislature and the executive
W.A.No.1588 of 2009
-:15:-has no power to exceed the total sanction without the
consent or assent of the legislature and the court cannot
impinge upon that field of legislature. The executive,
however, on the appreciation of the priorities can
determine the manner of priorities to be presented to the
legislature. The court cannot also, in our opinion,
impinge upon the judgment of the executives as to the
priorities.”
22. …….. So far as the additional grant of the sum was
required, it is entirely in the domain of the legislature to
sanction it or not. The members of the legislature know
the needs of the people. Under the Constitution, they
are authorised and entitled to fix the priorities for the
expenditure to satisfy the basic needs of the people,
upon the judgment and recommendation of the
executive.
xxx xxx xxx
27. ………… but it is primarily within the domain of the
legislature and the executive to decide the priority as
well as to determine the urgency. Judicial review of the
administrative action or inaction where there is an
obligation for action should be with caution and not in
haste.” (emphasis supplied)
11. Recently, this Court has occasion to
consider about the issuance of directions to the
Government, which will result in affecting the budget
allocations made for various subjects, in Cannanore
District Muslim Educational Association Vs. State of
W.A.No.1588 of 2009
-:16:-Kerala [2008 (2) KLT 879]. In the said decision, it was
held as follows:-
” 11. The sanctioning of new schools as mentioned
earlier will always come within the realm of policy.
Even if there is educational need, the Government can
decide not to sanction any schools, having regard to its
financial position. The resources of the Government
are limited. There are several competing claims for
allotment of funds. A person working in the field of
health would like to have the maximum funds allotted
for the said field, so that all the Government hospitals
are run properly and new hospitals are opened
wherever necessary. A person interested in literature
would like to see the Government to allot more funds
to encourage literary activities and support the
activities of Sahitya Academy etc. Likewise, a person
interested in education would like to have the
maximum funds allotted for education in every year’s
budget. But, the Government have to do a balancing
act, taking into account the competing claims of
various sectors. While considering the point whether
this Court can interfere with the fixation of priorities in
the matter of allotment of funds, we think, it is
appropriate to refer to the decision of the Court of
Appeal in R.v.Cambridge Health Authority, ex.p B
(1995) 2 All.E.R.129). It was a case concerning the
validity of the decision of the Health Authority not to
allot funds for the treatment of a child, as the chances
of success of treatment were remote and there were
W.A.No.1588 of 2009
-:17:-other claimants for the limited funds available with the
Authority. Though the Divisional Court interfered with
the decision of the Health Authority, the Court of
Appeal reversed it. In the said decision Sir Thomas
Bingham, Master of Rolls stated as follows:
“I have no doubt that in a perfect world any
treatment which a patient or a patient’s family,
sought would be provided if doctors were willing
to give it, no matter how much it costs,
particularly when a life was potentially at stake.
It would however, in my view, be shutting one’s
eyes to the real world if the court were to
proceed on the basis that we do live in such a
world. It is common knowledge that health
authorities of all kinds are constantly pressed to
make ends meet. They cannot pay their nurses
as much as they would like; they cannot provide
all the treatments they would like; they cannot
purchase all the extremely expensive medical
equipment they would like; they cannot carry out
all the research they would like; they cannot
build all the hospitals and specialist units they
would like. Difficult and agonising judgments
have to be made as to how a limited budget is
best allocated to the maximum advantage of the
maximum number of patients. That is not a
judgment which the court can make.”
( Emphasis supplied )
xxx xxx xxx
If this Court directs the Government to sanction a
W.A.No.1588 of 2009
-:18:-Higher Secondary School to the petitioner, it may
impinge upon the budgetary allotment of funds.
Further, if the Government take a policy decision not
to allot any funds for some time to a particular field,
it is not a matter, normally, for the courts to interfere.
In that case, the appeal would lie to “the ballot and
not to the courts”. Ours is a Government of people
and not of courts. The courts which are not
answerable to the legislature, are not supposed to
interfere with executive decisions and functions,
unless they are shown to be illegal or ultra vires. By
keeping itself within the four corners of the law, the
Government can take a wise or a foolish decision.
The courts are not authorised to correct the unwise
decisions of the Government. The normal mode to
get an unwise policy changed in democracies is by
building up enlightened public opinion and not by
approaching the court. ”
12. Concerning framing policies by Courts, while deciding
a case between two parties, Abraham Lincoln in his first
inaugural speech, in his inimitable style, commented:
“At the same time, the candid citizen must
confess that if the policy of the Government upon
vital questions, affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court,
the instant they are made in ordinary litigation
between parties in personal actions, the people will
have ceased to be their own rulers, having to that
extent practically resigned their own Government into
the hands of that eminent Tribunal”.
W.A.No.1588 of 2009
-:19:-The right of the people to govern themselves and not by the
Courts, articulated felicitously by Lincoln, is relevant for all
times, in democracies. The Court, which is not answerable
to the legislature, though composed of very learned and
erudite Judges, cannot enter the field of framing policies for
the people, in view of the Constitutional limitations.”
15. In National Fertilizers Ltd. v. Somvir Singh, (supra)
the Apex Court held as follows:-
“23. The contention of the learned counsel
appearing on behalf of the respondents that the
appointments were irregular and not illegal, cannot be
accepted for more than one reason. They were
appointed only on the basis of their applications. The
Recruitment Rules were not followed. Even the
Selection Committee had not been properly constituted.
In view of the ban on employment, no recruitment was
permissible in law. The reservation policy adopted by
the appellant had not been maintained. Even cases of
minorities had not been given due consideration.
24. The Constitution Bench thought of directing
regularisation of the services only of those employees
whose appointments were irregular as explained in
State of Mysore v. S.V.Narayanappa, R.N.Nanjundappa
v. T.Thimmiah and B.N.Nagarajan v. State of Karnataka
wherein this Court observed:
’16. In B.N.Nagarajan v. State of Karnataka
this Court clearly held that the words “regular”
or “regularisation” do not connote permanence
and cannot be construed so as to convey an
W.A.No.1588 of 2009
-:20:-idea of the nature of tenure of appointments.
They are terms calculated to condone any
procedural irregularities and are meant to cure
only such defects as are attributable to
methodology followed in making
appointments’.
25. Judged by the standards laid down by this
Court in the aforementioned decisions, the
appointments of the respondents are illegal. They do
not, thus, have any legal right to continue in service.
26. It is true that the respondents had been
working for a long time. It may also be true that they
had not been paid wages on a regular scale of pay.
But, they did not hold any post. They were, therefore,
not entitled to be paid salary on a regular scale of pay.
Furthermore, only because the respondents have
worked for some time, the same by itself would not be
a ground for directing regularisation of their services in
view of the decision of this Court in Umadevi.”
16. The pleadings and the materials on record disclose that
there are 32,268 Anganwadies under the Social Welfare Department.
Every Anganwady has one Teacher and one Ayah who are presently
engaged on payment of honorarium. If the claim of the respondents
for payment of salary and allowances applicable to regularly appointed
Nursery School Teachers and Ayahs is upheld, the State will be
burdened with the liability to extend the said benefit to all the 32268
Anganwady Teachers/Ayahs thereby casting a huge financial burden on
W.A.No.1588 of 2009
-:21:-
the State. Tested in the light of the principles laid down by the Apex
Court in Indian Drugs & Pharmaceuticals’ case (supra) and by this
Court in Executive Director, I.T.School Project v. Saranya
(supra), this Court will not be justified in directing regularisation of the
respondents in service and payment of salary and allowances to them
in the scale of pay applicable to persons regularly appointed and other
benefits as it will cast very heavy financial burden on the State
Exchequer. As noticed by the Apex Court in Official Liquidator v.
Dayanand, the State will be compelled to sanction that a large
number of additional posts in order to facilitate payment of salary and
allowances to them thereby putting considerable financial burden on
the exchequer. Further, as noticed earlier, the respondents do not
possess the qualifications prescribed for regular appointment as
Nursery School Teachers/Ayahs. Therefore, in principle also they
cannot claim payment of salary in the scale of pay applicable to regular
appointees. We are therefore, of the considered opinion that the
directions issued by the learned single Judge to regularise the
respondents in service and to pay them salary and allowances and
other benefits applicable to regular appointees cannot be sustained.
In the result we allow the writ appeal, reverse the judgment of
the learned single Judge and dismiss the writ petition. The parties shall
W.A.No.1588 of 2009
-:22:-
bear their respective costs.
K.BALAKRISHNAN NAIR,
Judge
P.N.RAVINDRAN,
Judge.
ahg.
K.BALAKRISHNAN NAIR &
P.N.RAVINDRAN, JJ.
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W.A.No.1588 of 2009
—————————-
JUDGMENT
9th March, 2010
