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Judgment
K. Sreedharan, J.—Petitioner is the General Secretary of the Kerala Panchayat Employees'' Association. This Association is one registered under the Trade Union Act. The grievance 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 1st July 1978. That order was silent with regard to the Dearness Allowance payable to the full-time contingent employees of panchayats. Dear-ness Allowance is based on the salary. Contingent employees are entitled to Dearness Allowance on the basis of the revised pay scales. By Exts. p. 2 to p. 4 orders the Government revised the rates of Dearness Allowance to Government Employees. The Dearness Allowance so revised based on the pay scales was being paid to the full-time contingent employees of the Panchayats till 14th October 1981. The State Government issued Ext. p. 5 under on 14th October 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.
A detailed counter affidavit has been filed on behalf of the respondents. The averments made therein are that the Government by G.O. Ms. 259/79/LA & SWD dated 8th November 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. p. 1 the scales of pay and allowances of full-time and part-time contingent employees were revised with effect from 1st July 1978, that the said order did not fix any Dearness Allowance for the full-time contingent employees, that by Ext. p. 5 sanction was accorded to disburse the Dear-ness Allowance to the full-time contingent employees with retrospective effect i.e., with effect from 1st July 1978, that the revision of Dearness Allowance under Exts. p. 2 to p. 4 are applicable only to Government Employees, that Exts. p. 2 to p. 4 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 fill-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 full-time contingent employees of the Panchayat and that in the above circumstances the original petition is premature.
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.
Section 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 8th November 1979 sanction was accorded for the creation of posts 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. p. 1 order their pay was revised. The full-time scavengers and other skilled workers were placed in the scale of pay of Rs. 290-5-330-6-390-7-425 and 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 allowance was directed to be borne by the concerned Panchayats. Ext. p. 1 order was silent about the D.A. payable to the full-time scavengers and full-time sweepers. By Exts. p. 2 to p.4 orders the Government revised the rates of Dearness Allowance. Paragraph 4 of those orders was in the following terms:
These orders will apply to the full-time state 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. p. 2 to p. 4 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. p. 2 to p. 4 are applicable to the employees of local bodies, the Dearness Allowance sanctioned by those orders must enure to the benefits of full-time contingent employees of local bodies. It is 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 restriction imposed in Exts. p. 2 to p. 4 because, they are interested only in getting the amount. They are not concerned about the source from which the money is drawn. The Panchayats must find resources for paying them D.A. at the enhanced rate.
By Ext. p. 5 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 1st July 1978 upto 31st March 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 31st March 1980. The full-time contingent employees are discharging the same duties and functions like their counterparts in the permanent establishment and in the Government Service.
The Panchayat Common Service Rules, 1977, came into force with effect from 1st April 1977. Rule 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-section (2) of Section 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 Section 39 of the Panchayats Act. Thus they are employees of the Panchayat. By Exts. p. 2 to p. 4, 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 were to enure only to regular employees in the Panchayats. Rule 5 of the Panchayat Common Service Rules states that every Panchayat shall 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 to time 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 (as paid) to regular employees belonging to the same category or grade.
In the counter affidavit it is stated:
The revision of rates of D.A., sanctioned in the G.O. referred as Exts. p. 2 to p. 4 are applicable only to the Government Employees. In the G.Os it has been specifically mentioned that the order 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. 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. p. 2 to p. 4 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. p. 2 to p. 4 orders.
In paragraph 7 of the counter affidavit it is contended, "The policy of giving equal wage to those who are doing same work is nonexistent". It is too late in the day for the Government to take such a stand. It is against the principle contained in Article 39(d) of the 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 Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, where it was observed at p. 404:
The Central Government, the State Government 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 ill-come from the mouths of the State and State Undertakings.
Doctrine of equal pay for equal work has again been upheld by Their Lordships in Bhagwan Dass and Others Vs. State of Haryana and Others, . 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.
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. p. 5 reducing this Dearness Allowance to Rs. 70/- per mensem for the period subsequent to 1st April 1980 is clearly unsustainable. Accordingly Ext. p. 5 is struck down. It is declared that the contingent employees of Panchayats are entitled to Dearness Allowance as if Ext. p.5 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.