IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24631 of 2006(R)
1. KERALA HIGH COURT STAFF ASSOCIATION ... Petitioner
1. STATE OF KERALA, REPRESENTED BY
2. THE SECRETARY TO GOVERNMENT,
3. THE ADDITIONAL CHIEF SECRETARY TO
4. THE SECRETARY TO GOVERNMENT,
5. HIGH COURT OF KERALA,
For Petitioner :SRI.KALEESWARAM RAJ For Respondent :SRI.ELVIN PETER P.J. The Hon'ble MR. Justice V.GIRI
O R D E R
W.P ( C) No.24631 of 2009
Dated this the 16th October,2009
J U D G M E N T
First petitioner is a service organization representing the interest of the staff of the High Court belonging to the Assistant category. Petitioners 2 to 4 are Senior Grade Assistants and Selection Grade Assistant in the High Court.
2. The issue concerns the date from which compensatory allowance, sanctioned in favour of Section Officers and Assistants attending to cause list work and Duplicate Machine Operator and Photocopier operator is to be paid. It is contended that the Assistants in the High Court who are involved in the cause list work are entitled to compensatory allowance. Such compensatory allowance was sanctioned in favour of the staff in the Advocate General's Office. On 24.2.2000, the Hon'ble Chief Justice addressed the Chief Minister in the matter of rectification of the anomalies in the pay revision of the staff of the High Court. One of the aspects related to payment of W.P ( C) No.24631 of 2009
compensatory allowance to Section Officers and Assistants attending to cause list work. In a meeting held between the Hon'ble Chief Justice and the Chief Minister on 20.7.2002, it was decided that wherever there is parity in the scale of pay, disparity in the payment of special pay and other allowances to the High Court staff will be rectified. The following decisions were therefore taken. "In this circumstances, Government have examined the proposals in detail and are pleased to sanction following allowances to the staff of High Court of Kerala from the date of this order. 1) Special allowance @ Rs.200/- p.m to the Joint Registrar, Deputy Registrar and Assistant Registrar.
2) Compensatory allowance @ Rs.200/- to Section Officers and Assistants attending to cause list work and @ Rs.100/- to Duplicator Machine Operator and Photocopier Operator per month.
3) Special allowance at the higher rate to the officers handling cash who were in receipt of the allowance prior to the issuance of G.O (P) No.1815/99(42)/Fin. dated 15.09.1999. 4) Conferment of the scale of pay of Rs.6500- 10550 to the Office Superintendents in the High Court and dispensing with the special allowance @ Rs.60/- p.m.
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3. Petitioners contend that the special compensatory allowance directed to be made available to the Assistants and Section Officers attending to cause list work should have been given effect to from 1.3.1997, the date on which the said compensatory allowance was sanctioned in favour of the staff in the Advocate General's Office doing cause list work. 1.3.1997 as a date which is significant on account of the fact that general pay revision orders issued by the State G.O (P) 3000/98 dated 25.11.1998 was given effect to with effect from 1.3.1997.
4. Request made by the petitioners for giving effect to the special compensatory allowance with effect from 1.3.1997 was considered by the Government and by Ext.P3 communication, the Registrar of the High Court was informed that the proposal to give retrospective effect to the allowances cannot be considered. Ext.P3 has been challenged in the writ petition.
5. Petitioners pray for a direction to the Government to see that the special compensatory allowance to the High Court staff attending cause list work be given W.P ( C) No.24631 of 2009
with effect from 1.3.1997 in stead of the date of Ext.P1 Government Order.
6. A counter affidavit has been filed by the State .
7. Heard learned counsel for the petitioner Sri.Kaleeswaran Raj, learned Government Pleader Sri.Antony Mukkath and learned counsel appearing for the High Court Sri. Elvin Peter.
8. Entitlement of the High Court Staff attending to cause list work for compensatory allowance is not a matter in dispute. Ext.P1 acknowledges such right. The question is whether the Government is correct in insisting that such special compensatory allowance needs to be paid only with effect from the date of Ext.P1 Government Order.
9. The question as to whether there is functional parity in the duties discharged by the staff of the High Court attending to cause list work and the staff of the Advocate General's Office discharging similar functions has been considered by this Court on more than one occasion. Such functional parity was found as a fact by this Court in WPC No.24940 of 2005. It was again reiterated in WPC W.P ( C) No.24631 of 2009
No.35907 of 2005 and 3850 of 2007. It is also significant that the existence of such functional parity between the staff of the Advocate General's office attending to cause list work and the staff of the High Court attending to such cause list work has been acknowledged by the Government itself and this is the justification for the Government also directing that such special compensatory allowance be paid, to the High Court staff attending to cause list work on a par with the staff of the Advocate General's Office. Once such functional parity is acknowledged and acted upon, then it is only logical and consequential to proceed on the premise that such special compensatory allowance will become payable to the High Court staff attending cause list work with effect from the date on which it was directed to be paid to the staff attending cause list work in the Advocate General's Office. In this regard, the question is not one of giving retrospective effect to the pay revision order comprehending the High Court Staff but only giving effect to a decision which itself is an acknowledgment of the existence of functional parity between the staff of the W.P ( C) No.24631 of 2009
High Court and staff of the Advocate General's Office attending to cause list work. It is precisely this aspect that was highlighted in Ext.P7 communication sent by the Registrar of the High Court to the Government , inter alia, conveying the directions of the Hon'ble Chief Justice. These aspects have not been correctly understood by the Government when it issued Ext.P3.
10. Learned counsel for the petitioner is justified in relying on the observations made by the Supreme Court in this regard in the context of functional parity and the right to equal pay emanating from Article 14 and 16 of the Constitution of India, as contained in the judgment in K.T Veerappa Vs. State of Karnataka [[2006(9) SCC 406].
11. To give effect to the special compensatory allowance, for the High Court Staff attending cause list work well subsequent to the date on which such allowance is paid to the staff of the Advocate General's Office doing cause list work would clearly result in a discrimination amongst similarly situated persons, violative of Article 14 of the Constitution of India. After all the decision taken by W.P ( C) No.24631 of 2009
the Government to allow special compensatory allowance to the staff of the High Court doing cause list work is an acknowledgment of the fact that there is functional parity between the staff of the Advocate General's Office doing cause list work. If that be so, the date from which special compensatory allowance is to be paid should also be the same. This crucial aspect has been lost sight of by the Government while passing Ext.P3 order.
12. Similar contention has been accepted by this Court in Exts.P4 and P6 judgments which significantly have not been appealed against by the Government. Reference could also have been made in this regard to the dictum laid down by the Division Bench in W.A No.1778 of 2009, wherein, this Court dismissed the appeal filed by the State against the grant of special compensatory allowance to Senior Grade and Selection Grade Typist-Copyist of the High Court.
13. In the result, writ petition is allowed. Ext.P3 is set aside. First respondent is directed to pass orders granting special compensatory allowance to Section W.P ( C) No.24631 of 2009
Officers and Assistants in the High Court doing cause list work, with effect from 1.3.1997 or in case where the incumbent had joined service after 1.3.1997, with effect from the date on which he joins service. Such orders shall be passed within two months from the date of receipt of a copy of this judgment and the monetary benefits flowing therefrom shall also be given to the eligible members of the staff of the High Court doing cause list work. Monetary benefits due to the eligible staff of the High Court shall be disbursed within one month from the date on which such orders are passed by the Government. (V.GIRI,JUDGE)
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W.P ( C) No.24631 of 2009