STATE OF WEST BENGAL vs. M.MULLICK

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4 PETITIONER: STATE OF WEST BENGAL & ORS. Vs. RESPONDENT: MONIRUJJAMAN MULLICK & ORS. DATE OF JUDGMENT: 19/07/1996 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AHMAD SAGHIR S. (J) CITATION: JT 1996 (7) 49 1996 SCALE (5)431 ACT: HEADNOTE: JUDGMENT: J U D G M E N T Kuldip Sinqh, J. Monirujjaman Mullick and other private respondents, in the appeal herein, were working as Instructors in various non-formal education centres in different districts in the State of West Bengal. They approached the High Court by way of a petition under Article 226 of the Constitution of India seeking a direction - based on the principle of "equal pay for equal work" - that they were entitled to the same scales of pay and allowances as were admissible and being paid to the primary school teachers. A learned single Judge of the High Court allowed the writ petition. Appeal filed by the State of West Bengal was disposed of with the following directions: "The writ petitioners who are not in regular employment elsewhere and who have the minimum qualification prescribed for the primary school teachers are entitled to the same scale of pay and allowances as admissible to the primary school teachers from the date of their initial appointment and further that they are also entitled to annual increments in the pay-scale in accordance with law; but their claim for absorption in the department as regular primary school teachers cannot be sustained and therefore stands rejected. It is made clear that the services of such non-formal teachers will be liable to stand automatically terminated as and when the non-formal education scheme is discontinued in this http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4 State. Persons similarly placed should also be given the same benefit to avoid further litigation in regard to the self-same issue." This appeal by the State of West Bengal is against the judgment of the learned single Judge and of the Division Bench of the High Court dated June 28 of 1993. We may briefly state the facts of the case. Government of India introduced a scheme in the year 1974-75 for imparting non-formal education to the children in the age group of 9/11 years who were either school drop-outs or did not go to school. The scheme provided for the opening of non-formal education centres (part-time) by the State Government with the help of Central Government grant. West Bengal Government took a policy decision on December 8, 1978 to implement the scheme. Subsequently the State Government formulated a new scheme regarding non-formal educational, which became operative with effect from October 4, 1989. The non- formal centres were part-time institutions. The instructors were given a fixed honorarium of Rs.105/ per month at the primary level and Rs. 125/- per month at the upper primary level. Persons with a motivation to serve the community particularly the weaker sections were appointed instructors. They were required to teach the children for two hours a day. The centres were run by the Panchayat Samities in rural areas and by the Committees/Corporations in urban areas. There were no specific buildings or sites for the centres. The instructor could use any site or building belonging to a social organization or a local authority. "The Division Bench of the High Court applied the doctrine of "equal pay for equal work" on the following reasoning: "From the booklet published and distributed by the Primary Education Directorate regarding formal (Prathamic Siksha) and non- formal (Bidhikukta Siksha), it appears that the purposes of both the streams being to help attain human values through practical literacy in language, elementary arithmetic, awareness for maintaining personal and public health and good environment, social awareness, scientific outlook to get rid of prejudices etc., the syllabus and the books prescribed for formal and non-formal education are almost same with the ultimate goal of equipping the boys and girls for entry into class V in regular High or Junior High School. It thus clear and we are also of considered opinion that neither stream in inferior to the other and that the duties, functions and responsibilities of the teachers of the formal and non-formal education are alike, if not heavier on the side of the non-formal stream." Mr. Dipankar Gupta, learned Solicitor General, appearing for the State of West Bengal has contended that http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4 the non-formal education centres were net a part of the regular educational system of the State of West Bengal. These centres were started under a policy decision of the Central Government which was implemented by the State of West Bengal to help educate the children belonging to weaker sections of the society. These centres were part-time by nature and the instructions were paid an honorarium. They were not appointed to a regular pay scale and were not paid any salary. Even the teaching in the centres was not for a full educational-day, it was only for two hours. According to Mr. Gupta when the scheme provided for two hours of non- formal teaching at the part-time centres by the part-time instructors, who were paid a mere honourarium the High Court was not justified in enlarging the scope of the scheme in the exercise of its power of judicial review under Article 226 of the Constitution of India. Mr. Gupta relied upon the judgment of this Court in Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi and Ors. (1992) 4 SCC 99. P.B. Swant, J. speaking for the Court observed as under:- "Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such scheme with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources." We are of the view that the non-formal educational centres cannot be equated with the primary schools which are regularly run by the Education Department of the State Government. Apart from the basic qualitative differences between the two institutions even the nature of work of the non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different. In the facts and circumstances of this case the High Court fell into patent error in applying the principle of "equal pay for equal work". The appeal is allowed and the judgment of the learned single Judge of the High Court and the impugn judgment of the Division Bench of the High Court are set aside. The writ petitions filed by the respondents before the High Court shall stand dismissed. No costs. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4 All the I. As are disposed of. State of West Bengal & Anr. V. The West Bengal Non-formal Education Centres Teachers’ Association & Ors. O R D E R Special leave granted. We have, by a separate judgment pronounced today, allowed Civil Appeal 4195 of 1994 State of West Bengal & Ors. vs. Monirujjaman Mullick & Qrs. and have set aside the Division Bench judgment of the Calcutta High Court (State of West Bengal vs. Monirujjaman Mullick 97 CWN 1075) We therefore allow the appeal and set aside the impugned judgment of the Division Bench of the High Court which is based on Monirujjaman’s case. No costs. The West Bengal Non-formal Education Centres Teachers Association V. The State of West Bengal & Ors. O R D E R We have by a separate judgment pronounced today in C.A.4195 of 1994, set aside the Division Bench judgment of the Calcutta High Court in State of West Bengal vs. Monirujjaman Mullick & Ors. (reported in 97 CWN page 10755. This appeal has been filed by the non-formal education teachers association against the Monirujjaman’s case. This appeal has become infructuous and as such is dismissed.