JOB v. DIRECTOR OF PANCHYATS — 1987 DIGILAW 587 (KER)

Judgment :- 1. Petitioner is the General Secretary of the Kerala Panchayat Employees Association. This Association is one registered under the Trade Unions Act. The grievances voiced by the petitioner is as follows: The Government revised the pay scales of full-time and part-time contingent employees of Panchayats with effect from 1-7-1978. That order was silent with regard to the Dearness Allowance payable to the full-time contingent employees of Panchayats. Dearness Allowance is based on the salary. Contingent employees are entitled to Dearness Allowance on the basis of the revised pay scales. By Exts. P2 to P4 orders the Government revised the rates of Dearness Allowance to Government Employees. The Dearness Allowance so revised based on the pay scales were being paid to the full-time contingent employees of the Panchayats till 14-10-1981. The State Government issued Ext. P.5 order on 14-10-1981 reducing the rates of Dearness Allowance applicable to full time contingent employees of Panchayats with retrospective effect. The said order is unsustainable. Hence this Original Petition. 2. A detailed counter affidavit has been filed on behalf of the respondents. The averments made therein are that the Government by G.O. Mi. 2S9/ 79/ LA & SWD dated 8-11-1979 accorded sanction for the creation of the posts of 6 full time sweepers and 2 full time scavengers in all Special Grade Panchayats, that the number of such employees comes to 342, that by Ext. P1 the scales of pay and allowances of full-time and part-time contingent employees were revised with effect from 1-7-1978, that the said order did not fix any Dearness Allowance for the full-time contingent employees, that by Ext. P5 sanction was accorded to disburse the Dearness Allowance to the full-time contingent employees with retrospective effect i.e. with effect from 1-7-1978, that the revision of Dearness Allowance under Exts. P2 to P4 are applicable only to Government Employees, that Exts. P5 sanction was accorded to disburse the Dearness Allowance to the full-time contingent employees with retrospective effect i.e. with effect from 1-7-1978, that the revision of Dearness Allowance under Exts. P2 to P4 are applicable only to Government Employees, that Exts. P2 to P4 will apply to the employees of local bodies subject to the condition that the expenditure will have to be met from the funds of the respective local bodies, that the full time and part-time contingent employees of the Panchayats are not considered as regular employees of the Panchayats and that the policy of giving equal wage to those who are doing same work is non-existent, that the orders issued regarding the revision of D. A. to State Government employees and others are not applicable to the case of contingent employees of the Panchayats, that the Government are considering the question of giving some enhancement in the D.A. to the full-time contingent employees of the Panchayat and that in the above circumstances the Original Petition is premature. 3. In paragraph-5 of the counter affidavit it is averred: "There are separate orders regarding the payment of allowance to them (full-time and part-time contingent employees of Panchayats)." No such order has been placed before me by the learned Government Pleader. 4. S.39 of the Kerala Panchayats Act, 1960, authorises the creation of posts in the Panchayat depending upon its requirements. In the counter affidavit filed on behalf of the State it is averred that as per G.O MS. 259/79/LA & SWD dated 8-11-1979 sanction was accorded for the creation of parts of 6 full time sweepers and 2 full time scavengers in all Special Grade Panchayats. Persons who were thus appointed are full-time contingent employees. By Ext. P1 order their pay was revised. The full-time scavengers and other skilled workers were placed in the scale of pay of Rs. 290-S-330-6-390-7-42S an J the scale of pay of full-time sweepers and other unskilled workers fixed as Rs. 280-5-340-6-400. The additional liability arising from this revision of pay and allowances was directed to be borne by the concerned Panchayats. Ext. P1 order was silent about the D.A. payable to the full-time scavengers and full-time sweepers. By Exts. P2 to P4 orders the Government revised the rates of Dearness Allowances. 280-5-340-6-400. The additional liability arising from this revision of pay and allowances was directed to be borne by the concerned Panchayats. Ext. P1 order was silent about the D.A. payable to the full-time scavengers and full-time sweepers. By Exts. P2 to P4 orders the Government revised the rates of Dearness Allowances. Paragraph-4 of those orders was in the following terms: "These orders will apply to the full-time slate government employees, staff of aided schools, private colleges and Polytechnics, full-time employees borne on contingency and work charged establishments and employees of local bodies, subject to the condition that the expenditure on this account in respect of local bodies will be met from the funds of the respective local bodies." From this it is evident that the revised Dearness Allowance ordered under Exts. P2 to P4 are applicable to all employees of local bodies. It is not disputed before me that the full-time scavengers and full-time sweepers, who are full time contingent employees, are employees of Panchayats. Since Exts. P2 to P4 are applicable to the employees of local bodies, the Dearness Allowance sanctioned by these orders must enure to the benefits of full-time contingent employees of local bodies. It was provided in those orders that the monetary liability will have to be borne by the respective Panchayats. The employees are not very much concerned about that restrictions imposed in Exts. P2 to P4, because, they are interested only in getting the amount. They are not concerned about the source from which the money is drawn. The Panchayati must find resources for paying them D.A. at the enhanced rate. 5. By Ext. P5 order the Government directed that the full-time contingent employees will be given D.A. at the rate of Rs. 142/- per mensem with effect from 1-7-1978 upto 31-3-1980 and at the rate of Rs. 70/-thereafter. I do not find any rhyme or reason for reducing the D.A. to Rs. 70/- for the period subsequent to 31-3-1980. The full-time contingent employees are discharging the same duties and functions like their counter-parts in the permanent establishment and in the Government Service. 6. The Panchayat Common Service Rules, 1977, came into force with effect from 1-4-1977. 70/-thereafter. I do not find any rhyme or reason for reducing the D.A. to Rs. 70/- for the period subsequent to 31-3-1980. The full-time contingent employees are discharging the same duties and functions like their counter-parts in the permanent establishment and in the Government Service. 6. The Panchayat Common Service Rules, 1977, came into force with effect from 1-4-1977. R.2(ii) defines "Common Service" as the service constituted for the regular employees of Panchayats other than the Executive Officer for each Revenue District and those paid from contingencies as contemplated in sub-s.(2) of S.39 of the Kerala Panchayats Act, 1960. Employees paid from contingencies do not form part of the Common Service. But they are persons appointed as per the provision contained in S.39 of the Panchayats Act. Thus they are employees of the Panchayat. By Exts. P2 to P4, Dearness Allowance of employees in the local bodies were fixed. No discrimination was made therein between regular employees and contingent employees. Therefore it cannot be said that the benefits under the above orders were to enure only to regular employees in the Panchayats. R.5 of the Panchayat Common Service Rules states that every Panchayat shell be bound to disburse the pay and allowance of an employee serving under it at such rate as may be fixed by the Director from time to time. There the word employee is not qualified with any adjective like regular. When contingent employees are found to be employees of the Panchayat, they cannot be discriminated against in the matter of pay and allowance. They must also be paid the same salary and allowance to regular employees belonging to the same category or grade. 7. In the Counter Affidavit it is stated: "The revision of rates of D.A., sanctioned in the G.O. referred at Ext.P2 to P4 are applicable only to the Government Employees. In the G.Os. it has been specifically sanctioned that the orders will apply to the employees of Local Bodies also subject to the condition that the expenditure on this will be met from the funds of the respective Local Bodies. The Full Time/Part Time contingent employees of Panchayats are not considered as regular employees of the Panchayats. There are separate orders regarding the payment of allowance to them. The Full Time/Part Time contingent employees of Panchayats are not considered as regular employees of the Panchayats. There are separate orders regarding the payment of allowance to them. Hence the Government orders revising the D.A. to the State government Employees and other categories of employees specifically mentioned in those orders are not applicable in the case of Full Time/ Part Time Contingent employees of the Panchayats." I find it difficult to endorse this stand of the respondents. A reading of Exts.P2 to P4 would show that the benefits therein are to extend to all the employees of local bodies. Full time/Part time contingent employees of local bodies are also employees of local bodies. Therefore it is not now open to the respondents to contend that the contingent employees of local bodies are not to get the benefits of Exts.P2 to P4 orders. 8. In Para.6 of the counter affidavit it is contended. "The policy of giving equal wage to those who are doing same work is non existent." It is too late in the day for the Government to take such a stand. It is against the principle contained in Art.39 (d) of (be Constitution of India. The State should strive to reach the goal of equal pay for equal work. The Supreme Court in various decisions has highlighted this principle. Reference may be made to Surender Singh v. Engineer in Chief, C.P.W.D. (AIR. 1986 SC. 584) where it was observed: "The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should illcome from the mouths of the Centre and State Undertakings." Doctrine of equal pay for equal work has again been upheld by Their Lordships in Bhagwan Dass and Others v. State of Haryana and others (A.I.R. 1987 SC. 2049). Thus it can be seen that the State cannot deny equal pay for equal work. When it is seen that the contingent employees of local bodies are doing the same or similar duties as in other establishments and departments of Government they should also be paid same salary. 9. 2049). Thus it can be seen that the State cannot deny equal pay for equal work. When it is seen that the contingent employees of local bodies are doing the same or similar duties as in other establishments and departments of Government they should also be paid same salary. 9. In view of what has been stated above, the Government was clearly in error in reducing the Dearness Allowance payable to full time contingent employees. The order Ext.P5 reducing this Dearness Allowance to Rs. 70/-per mensum for the period subsequent to 1-4-1980 is clearly unsustainable. Accordingly Ext.P5 is struck down. It is declared that the contingent employees of Panchayats are entitled to Dearness Allowance as if Ext.P5 had not been issued. The Original Petition is allowed in the above terms. Issue photo copy of the judgment to the parties on usual terms.