STATE OF WEST BENGAL AND ORS. ETC. versus MONLRUJJAMAN MULLICK AND ORS. ETC.

KULDIP SINGH, J. Monirujjaman Mullick and other private respondents, in the appeal herein) were \Vorking 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 writ petition. Appeal filed by the Slate of West Bengal was disposed of with the following directions :

p. 750, margin D

The writ petitioners who are not in regular employment elsewhere and who have the minimum qualification prescribed for the primary school teachers arc entitled to the same scale of pay and allowances as admissible to the primary school teachers from the date of their initi:tl 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 nonformal education scheme is discontinued in this State.

pp. 750–751, margin F

Persons similarly placed should also be given the same bcnelit

p. 751, margin A

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.

p. 751, margin A

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 Cenkal Government grant. West Bengal Government took a policy decision on December 8, 1978 lo implement the scheme. Subsequently the State Government formulated a new scheme regarding nonformal education, which became operative with efft.:ct 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. Person with a mctivation 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 Samilies in rural areas and by the Municipal Committees/Corporations in urban areas. There were no specific buildings or sitedor the centres. The instructors could use any site or building belonging to a social organisation or a local authority.

p. 751, margin C

The Division Bench of the High Court applied the doctrine of "equal pay for equal work" on the following reasoning :

p. 751, margin F

"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 ano the books prescribed for formal and non- formal education are almost same 'vith the uitimate goal of equipping the boys an<l girls for entry into class Vin regular High or unior High School.

pp. 751–752, margin F

lt t!~11s clear and arc also of considered opinion that neither stream is inferior to Lhe other and that the duties, functions and responsibilities of the teachers of the formal and non-formal education arc alike, if not heavier on the side of the non-formal

p. 752, margin A

strcan1.

p. 752, margin B

Mr. Dipankar Gupta learned Solicitor General, appearing for the Stale of West Bengal has contended that the non-formal education centres were not a part of the regular educational system of the Stale of WeslBengal. These centres \Vere started under a policy decision of the central Government \vhich was implemented by the Stale of West Bengal to help educate the children belonging to \Vcakcr sections of the society. These centres by nature and the instructors paid any honorariun1. They \Vere not appointed lo a regular pay scale and were not paid any salary. Even the teaching in the centres \\'as not for a full educe:itional-day~ it \Vas only for t\vo hours. According to Mr. Gupta \Vhcn the Schen1e provided for hours of non-formal teaching at the part-ti1ne centres by the part-tin1e instructors, \Vho \Vere paid a mere honourarium the High Court 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!ndia. Mr. Gupta relied upon the judgment of this Court in Delhi _Developnzent Honiculture En1ployees [inion\'. Delhi Adniit.istration, Delhi and 01'·., [ 1992] 4 SCC 99. P.B. Sa want, J. speaking for the Cour1 observed as under :

p. 752, margin B

"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 lo 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. ft is \\Tong 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 lo keep them from starvation. They would benefit a few al the cost of the many starving poor for whom the schemes are meant. Thal would also force the State to wind up the existing schemes and forbid them from

pp. 752–753, margin F

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".

p. 753, margin A

The appeal is allowed and the judgment of the learned single Judge of the High Court and the impugned judgment of the Divisit~1 Bench of the High Coml are set aside. The writ petitions filed by the respondents before the High Court .shall stand dismissed. No costs.

p. 753, margin C

Al! the I. As are disposed of. C.A. No. 9395 of 1996 @ SLP No. 22561 of 1994 Special leave granted.

p. 753, margin D

We have, by a separate judgment pronounced today, allowed Civil Appeal 4195 of 1994 State of West Bengal & Ors. v. Monimjjaman Mullick & Ors., and have set aside the Division Bench judgment of the Calcutta High Court (State of West Bengal v. Monintjjilman Mullick, 97 CWN 1075.

p. 753, margin E

We therefore, allow the appeal and set aside the impugned judgment of the Division Bench of the High Court which is based on Moni111jjaman's case. No costs.

p. 753, margin E

CA. No. 4194 of 1994.

p. 753, margin F

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 v. Monimjjaman Mullick & On», (reported in 97 CWN page 1075). This appeal has been filed by the non-formal education teachers association against the A1onin1jja111an's case. This appeal has become infructuous and as such ls dismissed. R.P. Appeal dismissed.

p. 753, margin F