{"id":145183,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-rep-by-its-vs-t-c-valsamma-on-9-march-2010"},"modified":"2016-10-04T09:55:23","modified_gmt":"2016-10-04T04:25:23","slug":"state-of-kerala-rep-by-its-vs-t-c-valsamma-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-rep-by-its-vs-t-c-valsamma-on-9-march-2010","title":{"rendered":"State Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
State Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 1588 of 2009()\n\n\n1. STATE OF KERALA REP.BY ITS\n                      ...  Petitioner\n2. THE DIRECTOR, SCHEDULED CASTE\n\n                        Vs\n\n\n\n1. T.C.VALSAMMA, W\/O.GEORGE,\n                       ...       Respondent\n\n2. KUNJUMOL, W\/O.KUTTAN,\n\n3. KUNJAMMA KUNJUMON, W\/O.KUNJUMON,\n\n4. K.CHELLAMMA, W\/O.BHASKARAN.C.,\n\n5. P.MEENAKSHI, D\/O.SANKARAN,\n\n6. KARTHU P.A., W\/O.A.K.CHANDRAN,\n\n7. USHA.I.I., D\/O.ITTIRI,\n\n8. THANKA K.M., W\/O.VASU,\n\n9. GOWRIKUTTY, W\/O.MANIYAN,\n\n10. LAKSHMI.T., W\/O.SIVAN P.T.,\n\n11. M.K.BHANUMATHI, W\/O.M.T.MOHANAN,\n\n12. V.S.KOUSALLIA, W\/O.IYYAPPAN,\n\n13. OMANA M.K., W\/O.KUNJAPPAN.P.A.,\n\n14. AMMINI M.I., W\/O.T.K.RAVI,\n\n                For Petitioner  :GOVERNMENT PLEADER\n\n                For Respondent  :SRI.THAMPAN THOMAS\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :09\/03\/2010\n\n O R D E R\n                                                             \"C.R\"\n\n         K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.\n                 -----------------------------------------\n                         W.A.No.1588 of 2009\n                 -----------------------------------------\n               Dated this the 9th day of March, 2010\n\n                               JUDGMENT\n<\/pre>\n
Ravindran,J.\n<\/p>\n
      The appellants are the respondents in W.P(C)No.21854 of 2006.<\/p>\n
The respondents are the petitioners therein. The brief facts of the<\/p>\n
case are as follows.\n<\/p>\n
      2. The respondents are Teachers and Ayahs working in various<\/p>\n
Kindergartens run by the appellants. They commenced service in the<\/p>\n
Balavadies\/Feeding Centres in the year 1984 after they were locally<\/p>\n
recruited otherwise than through the Employment Exchanges\/Kerala<\/p>\n
Public Service Commission.        Initially Teachers were being paid<\/p>\n
Rs.500\/- per mensem as honorarium and Ayahs were being paid<\/p>\n
Rs.100\/- per mensem as honorarium. Thereafter the honorarium was<\/p>\n
enhanced to Rs.1,000\/- and Rs.500\/- respectively for Teachers and<\/p>\n
Ayahs upon the Balavadies being upgraded as Kintergartens. They are<\/p>\n
presently being paid honorarium depending on their length of service.<\/p>\n
Teachers who are matriculates having five years of service are paid a<\/p>\n
honorarium of Rs.2,000\/- per mensem, Teachers who are matriculates<\/p>\n
having more than five years of service are paid a honorarium of<\/p>\n
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Rs.2,100\/- per mensem and Teachers with ten years of service are<\/p>\n
paid a honorarium of Rs.2,200\/- per mensem. Teachers who are not<\/p>\n
matriculates and have less than five years of service are paid<\/p>\n
Rs.1,400\/- per mensem, Teachers who have more than five years of<\/p>\n
service are being paid Rs.1,600\/- per mensem and Teachers who have<\/p>\n
ten years of service are being paid Rs.1,800\/- per mensem as<\/p>\n
honorarium. The honorarium being paid to Ayahs has been revised<\/p>\n
from Rs.500\/- to Rs.1,000\/- per mensem.\n<\/p>\n
      3. The respondents had earlier filed O.P.No.2408 of 2001 in this<\/p>\n
Court claiming regularisation in service as Nursery Teachers and Ayahs<\/p>\n
and the scale of pay of Nursery Teachers.         By Ext.P5 judgment<\/p>\n
delivered on 13-8-2004 a learned single Judge of this Court disposed of<\/p>\n
the said writ petition with a direction to the Government to consider<\/p>\n
their grievances and to take a decision thereon.      The respondents<\/p>\n
thereafter filed Ext.P6 representation before the Director, Secheduled<\/p>\n
Caste\/Scheduled     Tribe  Development      Department.      The   said<\/p>\n
representation was forwarded to the Government for disposal.       The<\/p>\n
Government thereafter passed Ext.P7 order dated 1-3-2006 rejecting<\/p>\n
their claim for regularisation in service.  The Government however,<\/p>\n
permitted the respondents to continue in service on a provisional basis,<\/p>\n
on humanitarian grounds.     Aggrieved thereby the respondents filed<\/p>\n
W.A.No.1588 of 2009
\n                                        -:3:-<\/span><\/p>\n
W.P(C)No.21854 of 2006 seeking the following reliefs:-<\/p>\n
           i)     to issue a writ of certiorari or any other appropriate<\/p>\n
                  writ, order or direction, calling for the records in this<\/p>\n
                  case and quash Exhibit P7 and all other connected<\/p>\n
                  proceedings.<\/p>\n
           ii)    to declare the petitioners are nursery teachers<\/p>\n
                  entitled for the pay scale prescribed by the<\/p>\n
                  government for the nursery teachers as that of the<\/p>\n
                  pay scale prescribed for Public Service Commission<\/p>\n
                  hands.<\/p><\/blockquote>\n
      4. The respondents contended that as they have been working as<\/p>\n
Teachers\/Ayahs in Kindergartens for the past more than 20 years they<\/p>\n
are entitled to be regularised in service.           They also contended that<\/p>\n
while similarly placed Nursery School Teachers are paid higher salary,<\/p>\n
they are paid only a consolidated amount by way of honorarium and<\/p>\n
that it is discriminatory and arbitrary. The respondents contended that<\/p>\n
under Article 46 of the Constitution of India the State is bound to<\/p>\n
promote the educational and economic interests of the weaker sections<\/p>\n
of the people and in particular of the Scheduled Castes and Scheduled<\/p>\n
Tribes, that the Balavadies where they are working were established<\/p>\n
for catering to the educational needs of the persons belonging to<\/p>\n
Scheduled Castes and Scheduled Tribes and therefore they are entitled<\/p>\n
to be regularised in service. Relying on Article 39 they contended that<\/p>\n
they are entitled to the scale of pay of regular recruits as they are<\/p>\n
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discharging the same functions.\n<\/p>\n
      5. The appellants resisted the writ petition contending, inter alia,<\/p>\n
that Balavadies-cum-Feeding Centres under the Scheduled Castes and<\/p>\n
Scheduled Tribes Department were started in the year 1979, that<\/p>\n
thereafter    Nursery School Teachers and Ayahs were engaged on<\/p>\n
honorarium basis, that the Balavadies were later upgraded into LKG<\/p>\n
and UKG and the honorarium was increased to Rs.1000\/- and Rs.500\/-<\/p>\n
respectively by Government order dated 19-9-1995. It is also stated<\/p>\n
that all the Teachers were given training in Bala Sevika Training<\/p>\n
Institute, Trivandrum, where they had attended the orientation course<\/p>\n
for Nursery Teachers for a few days. It is also contended that only<\/p>\n
Nursery School Teachers and Ayahs appointed through the Kerala<\/p>\n
Public Service Commission and Employment Exchanges are given the<\/p>\n
scales of pay of those posts and that the respondents, who were locally<\/p>\n
recruited and engaged on contract basis, are entitled only to payment<\/p>\n
of honorarium. The appellants also contended that as the respondents<\/p>\n
were engaged on contract basis and were not engaged after a regular<\/p>\n
selection process, they are not entitled to be regularised in service.<\/p>\n
The appellants further contended that the respondents are not entitled<\/p>\n
to salary in the scale of pay of regular Nursery School Teachers and<\/p>\n
Ayahs      appointed    through      the    Kerala     Public    Service<\/p>\n
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Commission\/Employment Exchanges.\n<\/p>\n
      6. By judgment delivered on 8-4-2009 the learned single Judge<\/p>\n
held that the respondents are entitled to regularisation in service with<\/p>\n
effect from 1-3-2006, the date of Ext.P7 order and that they are also<\/p>\n
entitled to salary and allowances and other benefits granted to<\/p>\n
temporary hands employed         through Employment Exchanges with<\/p>\n
effect from 1-3-2006.      It was also held that the respondents are<\/p>\n
entitled to the same service benefits which are extended to permanent<\/p>\n
employees recruited through the Kerala Public Service Commission<\/p>\n
from the date of regularisation of their services. Aggrieved thereby the<\/p>\n
appellants have filed this writ appeal.\n<\/p>\n
      7. We heard Sri.P.Santhosh Kumar, learned Special Government<\/p>\n
Pleader appearing for the appellants and Sri.Thampan Thomas, the<\/p>\n
learned counsel appearing for the respondents. We have also gone<\/p>\n
through the pleadings and materials on record. It is not in dispute that<\/p>\n
the respondents were recruited locally and were engaged on contract<\/p>\n
basis.     They    were    not   recruited   through   the   Employment<\/p>\n
Exchanges\/Kerala Public Service Commission after following the<\/p>\n
prescribed procedure.     The learned single Judge however, directed<\/p>\n
regularisation of their service relying on the decision of the Apex Court<\/p>\n
in U.P.State Electricity Board v. Pooran Chandra Pandey,<\/a> (2007)<\/p>\n
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11 SCC 92. The learned single Judge held that as the appellants have<\/p>\n
put in more than 25 years of service, the rejection of their claim for<\/p>\n
regularisation is arbitrary and unreasonable. The learned single Judge<\/p>\n
also held that as they are discharging the same duties and functions as<\/p>\n
regularly recruited Nursery School Teachers\/Ayahs, they are entitled to<\/p>\n
the scale of pay of Nursery School Teachers\/Ayahs recruited through<\/p>\n
the Kerala Public Service Commission.\n<\/p>\n
      8. A Constitution Bench of the Apex Court has, in Secretary,<\/p>\n
State of Karnataka and others v. Umadevi and others<\/a> (2006) 4<\/p>\n
SCC 1, held that unless the appointment is in terms of the relevant<\/p>\n
rules and after a proper competition among qualified persons, it would<\/p>\n
not confer any right on the appointee.       It was held that if the<\/p>\n
appointment is a contractual appointment, the appointment comes to<\/p>\n
an end at the end of the contract and that if the engagement was on<\/p>\n
daily wages or casual basis, the same would come to an end when it is<\/p>\n
discontinued.    The Apex Court also held that merely because a<\/p>\n
temporary employee or a casual wage worker is continued for a long<\/p>\n
time beyond the term of his appointment, he will not be entitled to be<\/p>\n
absorbed in regular service or made permanent merely on the strength<\/p>\n
of such continuance, if the original appointment was not made by<\/p>\n
following a due process of selection as envisaged in the relevant rules.<\/p>\n
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It was held that the High Court acting under Article 226 of the<\/p>\n
Constitution should not ordinarily issue directions for absorption,<\/p>\n
regularisation or permanent continuance unless the recruitment itself<\/p>\n
was made regularly and in terms of the constitutional scheme.<\/p>\n
                                        9.  In   U.P.State   Electricity<\/p>\n
Board v. Pooran Chandra Pandey<\/a> ((2007) 11 SCC 92), a Bench of<\/p>\n
two Hon’ble Judges of the Apex Court held that Umadevi’s case<\/p>\n
(supra) cannot be applied mechanically and without adverting to the<\/p>\n
facts of the case as the slight difference in facts can make Umadevi’s<\/p>\n
case (supra) inapplicable to the facts of that case. The Apex Court<\/p>\n
held that as others similarly placed had been given regularisation<\/p>\n
pursuant to the decision taken by the U.P.State Electricity Board on<\/p>\n
28.11.1996 to regularise the workers working on daily wage basis<\/p>\n
before 4.5.1990 in existing posts, it would be aribtrary and<\/p>\n
discriminatory to deny the benefit of such regularisation to some<\/p>\n
others who were likewise working on daily wage basis before 4.5.1990.<\/p>\n
Later, a larger Bench of the Apex Court held in Official Liquidator v.<\/p>\n
Dayanand (2008 (10) SCC 1) that the observations in U.P.State<\/p>\n
Electricity Board v. Pooran Chandra Pandey<\/a> (supra) are obiter and<\/p>\n
that the same should neither be treated as binding by the High Courts,<\/p>\n
nor should they be relied upon or made the basis for bypassing the<\/p>\n
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principles laid down by the Constitution Bench of the Apex Court in<\/p>\n
Umadevi’s case (supra).       It was reiterated by the Apex Court in<\/p>\n
Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC<\/p>\n
408 that creation and abolition of posts and regularisation in service<\/p>\n
are purely executive functions and the court cannot create a post<\/p>\n
where none exists or issue directions to absorb or continue casual<\/p>\n
employees in service or direct payment to them of salaries of regular<\/p>\n
employees.\n<\/p>\n
       10. In Punjab Water Supply & Sewerage Board v. Ranjodh<\/p>\n
Singh and others<\/a> ((2007) 2 SCC 491), the Apex Court after a<\/p>\n
detailed analysis of the case law on the point held that the observation<\/p>\n
in paragraph 53 of Umadevi’s case         (supra) that as a one-time<\/p>\n
measure, regularisation of employees can be made, was made, in<\/p>\n
relation to appointments which were only irregular in nature and not<\/p>\n
illegal appointments. It was held, relying on the decision of the Apex<\/p>\n
Court in National Fertilisers Ltd. v. Somvir Singh<\/a> ((2006) 5 SCC<\/p>\n
493) that a mandamus to regularise an employee in service can be<\/p>\n
issued only if he or she has a legal right to continue in service. The<\/p>\n
very same view was reiterated by the Apex Court in State of<\/p>\n
Karnataka v. G.V.Chandrasekhar,<\/a> (2009) 4 SCC 342. In Pinaki<\/p>\n
Chatterjee and others v. Union of India and others<\/a> ((2009) 5 SCC<\/p>\n
W.A.No.1588 of 2009
\n                                   -:9:-<\/span><\/p>\n
193), the Apex Court held that persons appointed on casual basis and<\/p>\n
not against any cadre post cannot claim regularisation in service<\/p>\n
especially when such appointment is not in compliance with Articles 14<\/p>\n
and 16 of the Constitution of India.\n<\/p>\n
      11. It is not in dispute that the respondents were not engaged<\/p>\n
after following the prescribed procedure wherein an equal opportunity<\/p>\n
was extended to others also to participate in the selection. The fact<\/p>\n
that the respondents were engaged only on contract basis is not in<\/p>\n
dispute.   It is also not in dispute that the respondents were not<\/p>\n
appointed against sanctioned cadre posts.          In our opinion the<\/p>\n
respondents, who were thus engaged only on a casual basis against<\/p>\n
non cadre posts without following the prescribed procedure and<\/p>\n
without a public advertisement inviting applications, cannot claim that<\/p>\n
they should be regularised in service merely for the reason that they<\/p>\n
have been working on contract basis for the past more than 25 years.<\/p>\n
We also notice that in the writ petition the respondents had not sought<\/p>\n
the relief of regularisation in service. In such circumstances we hold<\/p>\n
that the respondents are not entitled to claim regularisation in service.<\/p>\n
      12.   We shall now deal with the claim of the petitioners for<\/p>\n
payment of salary and allowances at the rates paid to regularly<\/p>\n
appointed    Nursery   School    Teachers\/Ayahs.     The    qualifications<\/p>\n
W.A.No.1588 of 2009
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prescribed for regular appointment as Nursery School Teacher is a pass<\/p>\n
in the SSLC Examination and Nursery School Training.                The<\/p>\n
respondents, admittedly, do not possess the said qualification. Though<\/p>\n
some among them have passed the SSLC Examination, they have not<\/p>\n
undergone the Nursery School Training. They have only attended and<\/p>\n
undergone the Orientation Course for Nursery School Teachers\/Ayahs<\/p>\n
of a short duration of less than one week at the Balasevika Training<\/p>\n
Institute.  The respondents were also not regularly appointed after<\/p>\n
following the prescribed procedure, namely through the Kerala Public<\/p>\n
Service Commission\/Employment Exchanges.          Though in Kishori<\/p>\n
Mohanlal Bakshi v. Union of India, AIR<\/a> 1962 SC 1139, the Apex<\/p>\n
Court had held that the principle of equal pay for equal work for men<\/p>\n
and women embodied in Article 39(3) is not capable of being enforced,<\/p>\n
later, the Apex Court in Randhir Singh v. Union of India,<\/a> (1982) 1<\/p>\n
SCC 618 held that the principle of ‘equal pay for equal work’ is not an<\/p>\n
abstract doctrine and can be enforced by reading it into the doctrine of<\/p>\n
equality enshrined in Articles 14 and 16 of the Constitution. The Apex<\/p>\n
Court has however, held that similarity in designation or quantum of<\/p>\n
work is not determinative of equality in the matter of pay scales and<\/p>\n
that factors like the source and mode of recruitment\/appointment,<\/p>\n
qualifications, nature of work, responsibilities etc. have to be<\/p>\n
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considered while considering the question whether the principle of<\/p>\n
equal pay for equal work should be applied. (See the decisions of the<\/p>\n
Apex Court in State of Haryana v. Jasmer Singh,<\/a> (1996) 11 SCC 77<\/p>\n
and Official Liquidator v. Dayanand (2008) 10 SCC 1). It has been<\/p>\n
held that there may be differences in educational or technical<\/p>\n
qualifications which may have a bearing on the skills which the holders<\/p>\n
of jobs bring to their job although the designation of the job may be<\/p>\n
the same. In Official Liquidator v. Dayanand (2008) 10 SCC 1, it<\/p>\n
was also held that any direction to compel the Government to pay the<\/p>\n
salary and allowances as was being paid to regular employees to casual<\/p>\n
employees will compel the Government to sanction additional posts so<\/p>\n
as to facilitate payment of salaries and allowances and that cannot be<\/p>\n
achieved by applying the principle equal pay for equal work.<\/p>\n
       13. The Apex Court has in Indian Drugs & Pharmaceuticals’<\/p>\n
case (supra) held as follows:-\n<\/p>\n
                      “49. Before parting with this case, we would like<\/p>\n
               to state that although this Court would be very happy if<\/p>\n
               everybody in the country is given a suitable job, the fact<\/p>\n
               remains that in the present state of our country’s<\/p>\n
               economy the number of jobs are limited.           Hence,<\/p>\n
               everybody cannot be given a job, despite our earnest<\/p>\n
               desire.<\/p><\/blockquote>\n
                      50.   It may be mentioned that jobs cannot be<\/p>\n
W.A.No.1588 of 2009
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            created by judicial orders, nor even by legislative or<\/p>\n
            executive decisions.       Jobs are created when the<\/p>\n
            economy is rapidly expanding, which means when there<\/p>\n
            is rapid industrialisation. At present, the state of affairs<\/p>\n
            in our country is that although the economy has<\/p>\n
            progressed a little in some directions, but the truth is<\/p>\n
            that this has only benefited a handful of persons while<\/p>\n
            the plight of the masses has worsened. Unemployment<\/p>\n
            in our country is increasing, and has become massive<\/p>\n
            and chronic. To give an example, for each post of a<\/p>\n
            peon which is advertised in some establishments there<\/p>\n
            are over a thousand applicants, many of whom have<\/p>\n
            MA, MSc, MCom or MBA degrees. Recently, about 140<\/p>\n
            posts of primary school teachers were advertised in a<\/p>\n
            district in Western Madhya Pradesh, and there were<\/p>\n
            about 13,000 applicants i.e. almost 100 applicants for<\/p>\n
            each post. Large-scale suicides by farmers in several<\/p>\n
            parts    of   the  country    also show    the   level    of<\/p>\n
            unemployment.       These are the social and economic<\/p>\n
            realities of the country which cannot be ignored.<\/p>\n
            51. One may be very large hearted but then economic<\/p>\n
            realities have also to be seen.     Giving appointments<\/p>\n
            means adding extra financial burden to the national<\/p>\n
            exchequer.       Money for paying salaries to such<\/p>\n
            appointees does not fall from the sky and it can only be<\/p>\n
            realised by imposing additional taxes on the public or<\/p>\n
            taking fresh loans, both of which will only lead to<\/p>\n
            additional burden on the people.\n<\/p>\n
            52. No doubt, Article 41 provides for the right to work,<\/p>\n
            but this has been deliberately kept by the Founding<\/p>\n
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             Fathers of our Constitution in the directive principles and<\/p>\n
             hence made unenforceable in view of Article 37,<\/p>\n
             because the Founding Fathers in their wisdom realised<\/p>\n
             that while it was their wish that everyone should be<\/p>\n
             given employment, but the ground realities of our<\/p>\n
             country cannot be overlooked. In our opinion, Article 21<\/p>\n
             of the Constitution cannot be stretched so far as to<\/p>\n
             mean that everyone must be given a job. The number<\/p>\n
             of available jobs are limited, and hence courts must take<\/p>\n
             a realistic view of the matter and must exercise self-<\/p>\n
             restraint.”\n<\/p>\n
      14. In Executive Director, I.T.School Project v. Saranya,<\/p>\n
2009(3) KLT 824, a Division Bench of this Court, to which one of us<\/p>\n
(K.Balakrishnan Nair,J.) was a party, while considering the question<\/p>\n
whether a writ in the nature of mandamus can be issued directing the<\/p>\n
Government to create adequate posts of qualified teachers in<\/p>\n
Government\/Aided High Schools to impart education and training to<\/p>\n
the students in the subject ‘Information Technology’, held as follows:-<\/p>\n
          “9.    The directions issued in paragraph 16 also could<\/p>\n
          not have been issued by this Court while exercising its<\/p>\n
          power under Article 226 of the Constitution of India. It is<\/p>\n
          for the government to take a decision in these matters.<\/p><\/blockquote>\n
          Whether the existing scheme for imparting Information<\/p>\n
          Technology education in the schools should be revised<\/p>\n
          etc. are matters exclusively within the realm of policy of<\/p>\n
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         the Government. In this context, it is apposite to quote<\/p>\n
         the following words of Benjamin N. Cardozo in his<\/p>\n
         “Judicial Process”:-\n<\/p>\n
                  ” The Judge, even when he is free, is still not<\/p>\n
                  wholly free. He is not to innovate at pleasure. He<\/p>\n
                  is not a knight-errant roaming at will in pursuit of<\/p>\n
                  his own ideal of beauty or of goodness. He is to<\/p>\n
                  draw his inspiration from consecrated principles.<\/p>\n
                  He is not to yield to spasmodic sentiment, to<\/p>\n
                  vague and unregulated benevolence. He is to<\/p>\n
                  exercise a discretion informed by tradition,<\/p>\n
                  methodized by analogy, disciplined by system,<\/p>\n
                  and subordinated to ‘the primordial necessity of<\/p>\n
                  order in the social life’.”<\/p>\n<\/blockquote>\n
         10.    If the directions of the learned single Judge are<\/p>\n
         implemented, the same will have ramifications on the<\/p>\n
         budget allocations already made. This Court cannot issue<\/p>\n
         any direction which will have such effect. See the<\/p>\n
         decision of the Apex Court in State of Himachal<\/p>\n
         Pradesh and another Vs. Umed Ram Sharma and<\/p>\n
         other [AIR 1986 SC 847], wherein it was held as follows:-<\/p>\n
          ” 21. There are detailed instructions regarding the<\/p>\n
          preparation, submission etc. of applications, for re-<\/p>\n
          appropriation. The sum and substance of the said<\/p>\n
          requirement are that total sanction of bill for a project is<\/p>\n
          within the domain of the legislature and the executive<\/p>\n
W.A.No.1588 of 2009
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          has no power to exceed the total sanction without the<\/p>\n
          consent or assent of the legislature and the court cannot<\/p>\n
          impinge upon that field of legislature. The executive,<\/p>\n
          however, on the appreciation of the priorities can<\/p>\n
          determine the manner of priorities to be presented to the<\/p>\n
          legislature. The court cannot also, in our opinion,<\/p>\n
          impinge upon the judgment of the executives as to the<\/p>\n
          priorities.”\n<\/p>\n
          22. …….. So far as the additional grant of the sum was<\/p>\n
          required, it is entirely in the domain of the legislature to<\/p>\n
          sanction it or not. The members of the legislature know<\/p>\n
          the needs of the people. Under the Constitution, they<\/p>\n
          are authorised and entitled to fix the priorities for the<\/p>\n
          expenditure to satisfy the basic needs of the people,<\/p>\n
          upon the judgment and recommendation of the<\/p>\n
          executive.\n<\/p>\n
                                   xxx         xxx         xxx<\/p>\n
          27. ………… but it is primarily within the domain of the<\/p>\n
          legislature and the executive to decide the priority as<\/p>\n
          well as to determine the urgency. Judicial review of the<\/p>\n
          administrative action or inaction where there is an<\/p>\n
          obligation for action should be with caution and not in<\/p>\n
          haste.”                                 (emphasis supplied)<\/p>\n
                  11.      Recently, this Court has occasion to<\/p>\n
          consider about the issuance of directions to the<\/p>\n
          Government, which will result in affecting the budget<\/p>\n
          allocations made for various subjects, in Cannanore<\/p>\n
          District Muslim Educational Association Vs. State of<\/p>\n
W.A.No.1588 of 2009
\n                                    -:16:-<\/span><\/p>\n
          Kerala [2008 (2) KLT 879]. In the said decision, it was<\/p>\n
          held as follows:-\n<\/p>\n
           ” 11. The sanctioning of new schools as mentioned<\/p>\n
           earlier will always come within the realm of policy.<\/p>\n
           Even if there is educational need, the Government can<\/p>\n
           decide not to sanction any schools, having regard to its<\/p>\n
           financial position. The resources of the Government<\/p>\n
           are limited. There are several competing claims for<\/p>\n
           allotment of funds. A person working in the field of<\/p>\n
           health would like to have the maximum funds allotted<\/p>\n
           for the said field, so that all the Government hospitals<\/p>\n
           are run properly and new hospitals are opened<\/p>\n
           wherever necessary. A person interested in literature<\/p>\n
           would like to see the Government to allot more funds<\/p>\n
           to encourage literary activities and support the<\/p>\n
           activities of Sahitya Academy etc. Likewise, a person<\/p>\n
           interested in education would like to have the<\/p>\n
           maximum funds allotted for education in every year’s<\/p>\n
           budget. But, the Government have to do a balancing<\/p>\n
           act, taking into account the competing claims of<\/p>\n
           various sectors. While considering the point whether<\/p>\n
           this Court can interfere with the fixation of priorities in<\/p>\n
           the matter of allotment of funds, we think, it is<\/p>\n
           appropriate to refer to the decision of the Court of<\/p>\n
           Appeal in R.v.Cambridge Health Authority, ex.p B<\/p>\n
           (1995) 2 All.E.R.129). It was a case concerning the<\/p>\n
           validity of the decision of the Health Authority not to<\/p>\n
           allot funds for the treatment of a child, as the chances<\/p>\n
           of success of treatment were remote and there were<\/p>\n
W.A.No.1588 of 2009
\n                                      -:17:-<\/span><\/p>\n
           other claimants for the limited funds available with the<\/p>\n
           Authority. Though the Divisional Court interfered with<\/p>\n
           the decision of the Health Authority, the Court of<\/p>\n
           Appeal reversed it. In the said decision Sir Thomas<\/p>\n
           Bingham, Master of Rolls stated as follows:\n<\/p>\n
                   “I have no doubt that in a perfect world any<\/p>\n
                   treatment which a patient or a patient’s family,<\/p>\n
                   sought would be provided if doctors were willing<\/p>\n
                   to give it, no matter how much it costs,<\/p>\n
                   particularly when a life was potentially at stake.<\/p>\n
                   It would however, in my view, be shutting one’s<\/p>\n
                   eyes to the real world if the court were to<\/p>\n
                   proceed on the basis that we do live in such a<\/p>\n
                   world. It is common knowledge that health<\/p>\n
                   authorities of all kinds are constantly pressed to<\/p>\n
                   make ends meet. They cannot pay their nurses<\/p>\n
                   as much as they would like; they cannot provide<\/p>\n
                   all the treatments they would like; they cannot<\/p>\n
                   purchase all the extremely expensive medical<\/p>\n
                   equipment they would like; they cannot carry out<\/p>\n
                   all the research they would like; they cannot<\/p>\n
                   build all the hospitals and specialist units they<\/p>\n
                   would like. Difficult and agonising judgments<\/p>\n
                   have to be made as to how a limited budget is<\/p>\n
                   best allocated to the maximum advantage of the<\/p>\n
                   maximum number of patients. That is not a<\/p>\n
                   judgment which the court can make.”\n<\/p><\/blockquote>\n
                                              ( Emphasis supplied )<\/p>\n
                         xxx        xxx         xxx<\/p>\n
             If this Court directs the Government to sanction a<\/p>\n
W.A.No.1588 of 2009
\n                                    -:18:-<\/span><\/p>\n
             Higher Secondary School to the petitioner, it may<\/p>\n
             impinge upon the budgetary allotment of funds.<\/p>\n<\/blockquote>\n
             Further, if the Government take a policy decision not<\/p>\n
             to allot any funds for some time to a particular field,<\/p>\n
             it is not a matter, normally, for the courts to interfere.<\/p>\n
             In that case, the appeal would lie to “the ballot and<\/p>\n
             not to the courts”. Ours is a Government of people<\/p>\n
             and not of courts. The courts which are not<\/p>\n
             answerable to the legislature, are not supposed to<\/p>\n
             interfere with executive decisions and functions,<\/p>\n
             unless they are shown to be illegal or ultra vires. By<\/p>\n
             keeping itself within the four corners of the law, the<\/p>\n
             Government can take a wise or a foolish decision.<\/p>\n
             The courts are not authorised to correct the unwise<\/p>\n
             decisions of the Government. The normal mode to<\/p>\n
             get an unwise policy changed in democracies is by<\/p>\n
             building up enlightened public opinion and not by<\/p>\n
             approaching the court. ”\n<\/p>\n
        12. Concerning framing policies by Courts, while deciding<\/p>\n
        a case between two parties, Abraham Lincoln in his first<\/p>\n
        inaugural speech, in his inimitable style, commented:<\/p>\n
                     “At the same time, the candid citizen must<\/p>\n
             confess that if the policy of the Government upon<\/p>\n
             vital questions, affecting the whole people, is to be<\/p>\n
             irrevocably fixed by decisions of the Supreme Court,<\/p>\n
             the instant they are made in ordinary litigation<\/p>\n
             between parties in personal actions, the people will<\/p>\n
             have ceased to be their own rulers, having to that<\/p>\n
             extent practically resigned their own Government into<\/p>\n
             the hands of that eminent Tribunal”.<\/p>\n<\/blockquote>\n
W.A.No.1588 of 2009
\n                                      -:19:-<\/span><\/p>\n
        The right of the people to govern themselves and not by the<\/p>\n
        Courts, articulated felicitously by Lincoln, is relevant for all<\/p>\n
        times, in democracies. The Court, which is not answerable<\/p>\n
        to the legislature, though composed of very learned and<\/p>\n
        erudite Judges, cannot enter the field of framing policies for<\/p>\n
        the people, in view of the Constitutional limitations.”<\/p>\n
     15.     In National Fertilizers Ltd. v. Somvir Singh,<\/a> (supra)<\/p>\n
the Apex Court held as follows:-\n<\/p>\n
                  “23.     The contention of the learned counsel<\/p>\n
            appearing on behalf of the respondents that the<\/p>\n
            appointments were irregular and not illegal, cannot be<\/p>\n
            accepted for more than one reason.             They were<\/p>\n
            appointed only on the basis of their applications. The<\/p>\n
            Recruitment Rules were not followed.            Even the<\/p>\n
            Selection Committee had not been properly constituted.<\/p>\n
            In view of the ban on employment, no recruitment was<\/p>\n
            permissible in law. The reservation policy adopted by<\/p>\n
            the appellant had not been maintained. Even cases of<\/p>\n
            minorities had not been given due consideration.<\/p>\n<\/blockquote>\n
                  24. The Constitution Bench thought of directing<\/p>\n
            regularisation of the services only of those employees<\/p>\n
            whose appointments were irregular as explained in<\/p>\n
            State of Mysore v. S.V.Narayanappa, R.N.Nanjundappa<\/a><\/p>\n
            v. T.Thimmiah and B.N.Nagarajan v. State of Karnataka<\/p>\n
            wherein this Court observed:\n<\/p><\/blockquote>\n
                      ’16. In B.N.Nagarajan v. State of Karnataka<\/p>\n
                      this Court clearly held that the words “regular”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                      or “regularisation” do not connote permanence<\/p>\n
                      and cannot be construed so as to convey an<\/p>\n
W.A.No.1588 of 2009
\n                                    -:20:-<\/span><\/p>\n
                    idea of the nature of tenure of appointments.<\/p>\n
                    They are terms calculated to condone any<\/p>\n
                    procedural irregularities and are meant to cure<\/p>\n
                    only such defects as are attributable to<\/p>\n
                    methodology         followed     in      making<\/p>\n
                    appointments’.\n<\/p><\/blockquote>\n
                  25. Judged by the standards laid down by this<\/p>\n
           Court     in   the    aforementioned     decisions,    the<\/p>\n
           appointments of the respondents are illegal. They do<\/p>\n
           not, thus, have any legal right to continue in service.<\/p>\n<\/blockquote>\n
                  26.   It is true that the respondents had been<\/p>\n
           working for a long time. It may also be true that they<\/p>\n
           had not been paid wages on a regular scale of pay.<\/p>\n
           But, they did not hold any post. They were, therefore,<\/p>\n
           not entitled to be paid salary on a regular scale of pay.<\/p>\n
           Furthermore, only because the respondents have<\/p>\n
           worked for some time, the same by itself would not be<\/p>\n
           a ground for directing regularisation of their services in<\/p>\n
           view of the decision of this Court in Umadevi.”<\/p><\/blockquote>\n
     16. The pleadings and the materials on record disclose that<\/p>\n
there are 32,268 Anganwadies under the Social Welfare Department.<\/p>\n
Every Anganwady has one Teacher and one Ayah who are presently<\/p>\n
engaged on payment of honorarium. If the claim of the respondents<\/p>\n
for payment of salary and allowances applicable to regularly appointed<\/p>\n
Nursery School Teachers and Ayahs is upheld, the State will be<\/p>\n
burdened with the liability to extend the said benefit to all the 32268<\/p>\n
Anganwady Teachers\/Ayahs thereby casting a huge financial burden on<\/p>\n
W.A.No.1588 of 2009
\n                                   -:21:-<\/span><\/p>\n
the State. Tested in the light of the principles laid down by the Apex<\/p>\n
Court in Indian Drugs & Pharmaceuticals’ case (supra) and by this<\/p>\n
Court in Executive Director, I.T.School Project v. Saranya<\/p>\n
(supra), this Court will not be justified in directing regularisation of the<\/p>\n
respondents in service and payment of salary and allowances to them<\/p>\n
in the scale of pay applicable to persons regularly appointed and other<\/p>\n
benefits as it will cast very heavy financial burden on the State<\/p>\n
Exchequer. As noticed by the Apex Court in Official Liquidator v.<\/p>\n
Dayanand,      the State will be compelled to sanction that a large<\/p>\n
number of additional posts in order to facilitate payment of salary and<\/p>\n
allowances to them thereby putting considerable financial burden on<\/p>\n
the exchequer. Further, as noticed earlier, the respondents do not<\/p>\n
possess the qualifications prescribed for regular appointment as<\/p>\n
Nursery School Teachers\/Ayahs.         Therefore, in principle also they<\/p>\n
cannot claim payment of salary in the scale of pay applicable to regular<\/p>\n
appointees.   We are therefore, of the considered opinion that the<\/p>\n
directions issued by the learned single Judge to regularise the<\/p>\n
respondents in service and to pay them salary and allowances and<\/p>\n
other benefits applicable to regular appointees cannot be sustained.<\/p>\n
      In the result we allow the writ appeal, reverse the judgment of<\/p>\n
the learned single Judge and dismiss the writ petition. The parties shall<\/p>\n
W.A.No.1588 of 2009
\n                               -:22:-<\/span><\/p>\n
bear their respective costs.\n<\/p>\n<\/p>\n
                                      K.BALAKRISHNAN NAIR,
\n                                               Judge<\/p>\n
                                          P.N.RAVINDRAN,
\n                                                Judge.\n<\/p>\n
ahg.\n<\/p>\n
K.BALAKRISHNAN NAIR &
\n  P.N.RAVINDRAN, JJ.\n<\/p>\n
 —————————\n<\/p>\n
  W.A.No.1588 of 2009\n<\/p>\n
—————————-\n<\/p>\n<\/p>\n
        JUDGMENT<\/p>\n
    9th March, 2010<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court State Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010 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., […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-145183","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-rep-by-its-vs-t-c-valsamma-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala Rep.By Its vs T.C.Valsamma on 9 March, 2010 - 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