Judgment :- The petitioners are Higher Secondary School Teachers appointed in various schools in Trichur district during the academic years 1999-2000 and 2000-2001 before the judgment of the Supreme Court in M.M. Dolichan v. State of kerala (AIR 2001 S.C. 216) was rendered. According to them their appointments were either on the basis of Ext.P1(a) Government Order or on the basis of Ext.P1(b) interim order passed by the Supreme Court. They claim that the Supreme Court has per its final decree (Ext.P1) has declared that persons appointed under Ext.P1(a) or Ext.P1(b) are all persons duly appointed and their services are not liable to be cancelled. All the petitioners claim that they are entitled benefits of Ext.P1 decree of the Supreme Court. The Government has by promulgating Ext.p2 government Order regularized the appointments of all persons entitled for the benefits under Ext.P1 decree. The Director of Higher Secondary Education, the approving authority, has granted approval also to all these appointments. The petitioners claim that the posts against which they were appointed were all sanctioned posts as per the staff fixation orders of the Director during the years 1999-2000 and 2000-2001. The Government under Ext.P3 Government Order has granted retrospective sanction for the posts created and all the posts have retrospective effect from the date of commencement of the concerned academic year. Therefore the petitioners contend that they are eligible for salary as per the scale of pay admissible for Higher Secondary School Teachers for their entire approved service. Their grievance is that under Exts.P8 and P9 orders of the Government the salary due to the petitioners and similar teachers for the period prior to December 2001 on the pay scale applicable to the H.S.S.Ts. is withheld by the Government. Several years have passed since then. According to the petitioners, this court has through orders passed in identical cases held that there is no justification for withholding of admissible salary due to similarly circumstanced teachers. The Government did not file even counter affidavits in those cases. The Director of Higher Secondary Education through his letter Ext.P10 addressed the Government has supported the stand of the petitioners, so claims the petitioners. Exts.P11 and P11(a) judgments according to them have attained finality. The Government has now issued Ext.P12 order pretending to confer the reliefs directed under Exts.P11 and P11(a) to all teachers. The Director of Higher Secondary Education through his letter Ext.P10 addressed the Government has supported the stand of the petitioners, so claims the petitioners. Exts.P11 and P11(a) judgments according to them have attained finality. The Government has now issued Ext.P12 order pretending to confer the reliefs directed under Exts.P11 and P11(a) to all teachers. But the petitioners state that the real objective behind Exts.P11 and P11 (a) is to deny the teachers the full salary which is due to them. On these allegations, the writ petitioners filed this writ petition initially for the following reliefs: 1) To declare that the petitioners are entitled for payment of salary admissible to the post of HSST for their approved service as HSST. 2) To declare that the matter concluded and attained finality by Ext.P11 and P11 (a) judgments which cannot be undone by executive orders like Ext.P12. 3) Issue a writ of mandamus or direction directing the respondents to pay the petitioners their arrears of salary on scale of pay admissible to the post of HSST for their approved service as HSST within the time limit prescribed by this Hon’ble Court untrammeled by contrary stipulations, if any, contained in Ext.P8, P9 and P10 Government Orders. 4) Grant such other reliefs as this Hon’ble court deems fit and proper in the facts and circumstances of the case. Later producing additional documents Exts.P13 to P17 and Government Orders Exts.P18 and P19 promulgated by the Government subsequently along with additional affidavits, the petitioners filed I.A.No.15795/05 seeking amendment of the wit petition. The I.A. was allowed and as amended the writ petitioners seeks the following reliefs also: 5) To declare that Aided Higher Secondary School Teachers appointed in pursuance of Government Order dated 13.5.1998 (Ext.P1(a)) during the academic year 1999-2000 and Ext.P1(b) interim order of the Hon’ble Supreme Court dated 7.12.1999 during the academic year 1999-2000 and 2000-2001 till the date of Ext.P1 judgment/decree in Dollichan’s case dated 14.11.2000 are holding the post of HSST/HSST(Jr.) as the case may be with effect from their approved date of appointment in view of Exts.P1 and P3 and therefore entitled for payment on scale of pay which the post is carrying as per Ext.P6 Government Order for the period in between their approved date of appointment and 1.12.2001. 6) To declare that after having granted payment on scale of pay to Aided HSSTs. 6) To declare that after having granted payment on scale of pay to Aided HSSTs. Working from 1991 onwards as well as to those who were appointed as per Ext.P1(a) Government Order dated 13.5.1998 during 1998-99 and therefore covered by Dolichan’s judgment for the academic years 1999-2000 and 2000-2001, upto 1.12.2001, denial of the same to fresh recruits and transferred teachers from lower level is denial of the principle of ‘equal pay for equal work’ stemmed from Article 14 and further discriminatory and arbitrary. In the writ petition the Aided Higher Secondary School Teachers Association was impleaded as additional respondents in I.A.No.15678/04. 2. It is a detailed counter affidavit which has been filed on behalf of the contesting respondents, namely the Government and the Secretary to the General Education Department. It is contended through this counter affidavit that the Government issued Ext.P8 order, G.O.(P) No.56/2002/Fin. Dated 16.1.2002 on account of the acute financial difficulties which the Government was experiencing. The Government Order was issued with the purpose of enforcing the austerity measures necessitated on account of the Government’s financial crunch. Thereafter the Government promulgated Ext.P9 Government Order and provided that teachers who were appointed in the posts newly created as per Ext.P3 Government Order will be given salary on the scale of pay admissible to the Higher Secondary School Teachers with effect from 1st December, 2001 by cash and that salary for the period upto that date will be paid at rates admissible to Guest Lecturers. According to the counter affidavit, the petitioners and similarly placed Higher Secondary School Teachers are eligible for salary only at those rates. While fixing scale of pay for Aided School Higher Secondary School Teachers it has been clearly provided that the same will be subject to relevant Government Orders issued in that regard. Apart from that, the grant of approval to the appointments given to Aided Higher Secondary School Teachers including the petitioner was subject to the condition that they will claim salary as per scale of pay only with effect from 1.12.2001. If the Government is directed to pay arrears of salary to these teachers for the periods prior to 1st December 2001 on the admissible scale of pay, that will mean that the Government will be fastened with a very heavy financial commitment. This was why G.O. (MS)No.56/2002/Fin. dated 16.1.2002 and thereafter G.O.(MS).No.56/2002/G.Edn. dated 25.1.2002 was issued by the Government. If the Government is directed to pay arrears of salary to these teachers for the periods prior to 1st December 2001 on the admissible scale of pay, that will mean that the Government will be fastened with a very heavy financial commitment. This was why G.O. (MS)No.56/2002/Fin. dated 16.1.2002 and thereafter G.O.(MS).No.56/2002/G.Edn. dated 25.1.2002 was issued by the Government. As regards G.O.(MS) No.56/2002/Fin. Dated 16.1.2002 it is pointed out that the same is a general order which relates to all the Government employees in Kerala. According to the counter affidavit, the petitioners interpretation of the Supreme Court’s order is not correct. The Supreme Court has only stated that the appointments given to the petitioners shall not be annulled and that the Supreme Court has not said anything about the salaries payable to the Teachers. This, according to the counter affidavit, is the reason why in G.O.(Rt).No.4528/2003/G.Edn. dated 5.11.2003 issued by the Government on the basis of the directions in O.P.No.23810/02, the Government has provided that salary for the periods prior to 1.12.2001 will be at the rates applicable to Guest Lecturers. The financial commitment of the Government, if the request of the petitioners is to be upheld, will be Rs.75 crores. The present grievance of the petitioners that they are being discriminated against those persons who have been appointed either by transfer or by deployment is without basis. As far as the petitioners are concerned, they are all fresh appointees. But as far as the appointees by transfer or by deployment are concerned, they are persons who were entitled for a definite scale of pay even prior to their appointment/deployment. It is not proper to deprive them of the salary which they were drawing on the ground that the Government has financial difficulties. But fresh appointees like the petitioners stand on a different footing. The petitioners have not questioned the orders of approval given to their appointments and they are not entitled to raise their present claims. 3. I have heard the arguments of Mr. Benoy Thomas, learned counsel for the writ petitioners and Mr. M.A. Thomaskutty, learned Government Pleader for respondents 1 and 2. 4. Mr. The petitioners have not questioned the orders of approval given to their appointments and they are not entitled to raise their present claims. 3. I have heard the arguments of Mr. Benoy Thomas, learned counsel for the writ petitioners and Mr. M.A. Thomaskutty, learned Government Pleader for respondents 1 and 2. 4. Mr. Benoy Thomas who made submissions on the basis of the pleadings invited my attention to Ext.P1 (a) Government Order, Ext.P1(b), interim order passed by the Supreme Court, Ext.P4 Government Order, Ext.P4(a) Government Order, Ext.P3 Government Order, Ext.P.2 Government Order and Ext.P4 staff fixation order. According to the learned counsel, the orders which are challenged or sought to be interpreted in this case are basically Exts.P8 and P9 Government Orders. Mr. Benoy submitted that no previous writ petition has been filed by the petitioners challenging these two orders. Learned counsel submitted that on 13th July, 2004 this court passed a judgment in this writ petition directing the respondents to extend the benefits conferred on the parties under Exts.P11 and P11(a) judgments to these petitioners also and that subsequently on 16.11.2004 the said judgment was reviewed noticing that the Government wanted to file a counter affidavit challenging the merits of the petitioners request. According to Mr. Benoy, the Government does not have a consistent stand in Exts.P8 and P9 Exts.P8 and P9 are only artificial devices coined by the Government for denying the salary which is admissible to the teachers for the periods prior to 1.12.2001. According to Mr. Benoy, there was nothing new in Exts.P12 and P19. They are only repetitions of Exts.P8 and P9. There is no estoppel against the petitioners claiming salary on scale of pay due to the reason that they have received the salary at the rates applicable to Guest Lecturers since the petitioners claims are founded on Article 14. According to the learned counsel, the issue has become boiled down further due to the promulgation of Ext.P16 order by the Government. Under Ext.P16 all Higher Secondary School Teachers other than direct appointees like the petitioners will get salary on scale of pay by cash even for the periods prior to 1.12.2001. According to the learned counsel, the issue has become boiled down further due to the promulgation of Ext.P16 order by the Government. Under Ext.P16 all Higher Secondary School Teachers other than direct appointees like the petitioners will get salary on scale of pay by cash even for the periods prior to 1.12.2001. Mr Benoy relied on the judgments of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180), M/s. Kasturi Lal v. State of J. & K. (AIR 1980 S.C. 1992) and Kamlakar v. Union of India (AIR 1999 S.C. 2300) and many other decisions in support of his submissions. Submitting that there is justification for granting reliefs to all similarly circumstanced teachers irrespective of whether they have been impleaded as parties, the learned counsel relied on the judgments of this court in Raveendran Nair v. State of Kerala (2001(2) KLT 809) and Somukuttan Nair v. State of Kerala (1997(1) KLT 601). 5. Mr. M.A. Thomaskutty, learned Government Pleader would oppose the submissions of Mr. Benoy Thomas very stiffly. He invited my attention to the salient aspects of the counter affidavit filed on behalf of respondents 1 and 2. According to the learned Government Pleader, the appointees by direct recruitment and appointees by transfer or deployment do not belong to the same class and therefore Ext.P16 Government Order cannot be said to be discriminatory. At the time when the petitioners were selected and appointed and at the time when approval was given to the appointments, it was clearly provided that the appointments and approvals will be subject to the Government Orders to be issued from time to time. That being so, there is no justice for insisting on salary on scale of pay at present. More than Rs.75 crores will be the Government’s financial commitment if the request of the petitioners is to be upheld. The present financial position of the Government, will not permit a favourable consideration of the petitioners’ request. 6. I have considered the rival submissions, the rival pleadings and the documents produced from either sides. I have gone through the principles laid down by the various decisions cited at the bar. The present financial position of the Government, will not permit a favourable consideration of the petitioners’ request. 6. I have considered the rival submissions, the rival pleadings and the documents produced from either sides. I have gone through the principles laid down by the various decisions cited at the bar. All the petitioners are appointees appointed in pursuance to Exts.P1(b) interim order of the Hon’ble supreme Court dated 7.12.1999 and thus obviously their appointments took place in between 7.12.1999 and 14.11.2000, the date of judgment of the Supreme Court in M.M. Dolichan v. State of Kerala (supra) in respect of which Ext.P1 decree is drawn up. As per Ext.P1 decree it is stated that the appointments made either on the basis of Ext.P1(a) Government Order or Ext.P1(b) interim order of the Supreme Court shall not be annulled. It is further provided that in the case of persons appointed under Ext.P1(b) interim order by clause (1) of Ext.P1 decree that appointees in pursuance to Ext.P1(b) interim order would be held to be duly appointed to the posts. Thus there is force in the argument of the petitioners that they were declared by the Hon’ble Supreme Court as holders of the post with effect from the respective dates of their appointment, in this case Ext.P13 series. Ext.P2 Government Order dated 25.11.2000 was promulgated by the Government in implementation of Ext.P1 decree thus regularizing the appointments given to the petitioners. Thereafter the Government issued Ext.P3 Government Order dated 17.8.2001 creating posts with retrospective effect, in other words, giving financial clearance for the payment of salary to the teachers. Even if it is assumed that the posts were created only under Ext.P3 Government Order, then also the argument of the petitioners that the Government became compelled to do so in view of Ext.P1 decree will have to be accepted. It was thereafter that the Head of the Department, the Director of Higher Secondary Education issued Ext.P14 staff fixation order with effect from 15.7.2000 so as to accommodate the petitioners in the various posts with effect from the respective dates of their appointments. There is no reference at all to any of the impugned orders in Ext.P14 staff fixation order. It was thereafter that the Head of the Department, the Director of Higher Secondary Education issued Ext.P14 staff fixation order with effect from 15.7.2000 so as to accommodate the petitioners in the various posts with effect from the respective dates of their appointments. There is no reference at all to any of the impugned orders in Ext.P14 staff fixation order. Therefore the argument of the petitioners that they were holders of the posts from the dates of their respective appointments and the from the dates of their respective appointments and the date of creation of posts has to be either from the beginning of the academic year, i.e. 15.7.2000 as shown in Ext.P14 or the date of appointment of the petitioners cannot be ignored since any other interpretation will go against the terms of clause (1) of Ext.P1 decree. Exts.P8 and P9 orders of the Government by which the salary which is payable to the petitioners during the periods in between their approved date of appointment and 1.12.2001 is directed to be paid not according to the pay scale admissible to the Higher Secondary School Teachers but only on the pay scale admissible for quest lecturers have obviously been issued as an austerity measure to cope up with the difficult financial situation of the Government. The argument of the Government Pleader that the petitioners having drawn the salary at rates applicable to guest lecturers during these periods are precluded from claiming salary on scale of pay cannot be accepted since the principle of equal pay for equal work stems out of Article 14 of the Constitution and as the Supreme Court ruled in Olga Tellis v. Bombay Municipal Corporation (AIR 1986 S.C. 180) there cannot be any waiver of fundamental rights nor estoppel against a plea which has got foundation on fundamental rights. As rightly submitted by Mr. Benoy Thomas the issue has boiled down further by the issuance of Ext.P16 Government Order dated 25.11.2004. Under Ext.P16, salary on the scale of pay for the disputed period, i.e. the period in between the dates of appointment and 1.12.2001 is given in the case of transferees and all others appointed in pursuance of Exts.P1(b) and P1(a) other than direct recruitees like the petitioners. To that extent the rigour of Exts.P8 and P9 have been watered down. Under Ext.P16, salary on the scale of pay for the disputed period, i.e. the period in between the dates of appointment and 1.12.2001 is given in the case of transferees and all others appointed in pursuance of Exts.P1(b) and P1(a) other than direct recruitees like the petitioners. To that extent the rigour of Exts.P8 and P9 have been watered down. The question which arises now is whether the relaxation given to Exts.P8 and P9 through Ext.P16 in the case of appointees by transfer and appointees other than those by direct recruitment can be extended to direct recruits like the petitioners. Strong reliance was placed in this regard by Mr. Benoy Thomas on the judgment of the Supreme Court in M/s. Kasturi Lal v. State of J. & K. (AIR 1980 S.C. 1992) to submit that the Government’s discretion on the issue of extending the benefit of Ext.P16 to certain given categories of appointees was not absolute or unbridled. I am informed that petitioners 2, 3, and 4 before me are beneficiaries of Ext.P16 order and it is only petitioners 1, 5 and 6 who are in need of relief’s in this writ petition. The argument of the learned Government Pleader that there is an obvious distinction between the transferees and direct appointees in that the transferees were already on a pay scale while petitioners 1, 5 and 6 were entering into the service for the first time is certainly attractive but as the Apex Court noticed in its judgment in Kamlakar v. Union of India (AIR 1999 S.C. 2300) persons who are members of one cadre ought to be treated alike for payment of the remuneration due to them. The Apex Court observed at paragraph 12 as follows: “Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data processing Assistants they were holding and to its scale………………… then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible.” Petitioners 2, 3 and 4 and petitioners 1, 5 and 6 all belong to the same cadre of H.S.S.T. (Junior) as the case may be. The claims of petitioners 1, 5 and 6 based as the same is upon Article 14 of the Constitution cannot be said to be waived due to any previous conduct of the petitioners by receiving salary on scale of pay due to the guest lecturers instead of scale of pay admissible for H.S.S.Ts. 7. The above discussion leads this writ petition to the following result: Exts. P8, P9, P12 and P19 to the extent they direct payment of salary to the petitioners for the periods upto 1.12.2001 only the scale applicable to guest lecturers are quashed and it is declared that all appointees to the posts and it is declared that all appointees to the posts of Higher Secondary School Teachers and Higher Secondary School Teachers (Junior) are entitled to salaries as per the pay scale admissible to them from the approved dates of their appointments. There will be a direction to respondents 1 and 2 to extend the benefit of Ext.P16 Government Order to petitioners 1, 5 and 6 also within a period of two months of a copy of this judgment being placed before the 1st respondent. Having regard to the financial difficulties of the Government as depicted through the counter affidavit, it is made clear that the Government will have the discretion of deciding on the modalities of payment of the arrears of salary due consequent upon the declaration above given and the directions above passed. It is further clarified that the Government can make payments either by cash in reasonable installments or by giving credit to the Provident Fund Account of the teachers concerned or by any other like manner. The Writ Petition is allowed to the extent indicated above. No costs.