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Kerala High Court
State Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010




WA.No. 1588 of 2009()

                      ...  Petitioner


                       ...       Respondent














                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.THAMPAN THOMAS

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :09/03/2010

 O R D E R

                         W.A.No.1588 of 2009
               Dated this the 9th day of March, 2010



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

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

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


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


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

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

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

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

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.

9. In U.P.State Electricity

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

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


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

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

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

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


50. It may be mentioned that jobs cannot be

W.A.No.1588 of 2009

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

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-


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

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

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


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


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

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

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

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

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

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


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

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

bear their respective costs.






W.A.No.1588 of 2009



9th March, 2010

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