State of Rajasthan
& Ors. Vs. Daya Lal & Ors.
WITHC.A. No. 487 of
2011 [@ SLP [C] No.1928/2005]
C.A. No. 488 of 2011
[@ SLP [C] No.1930/2005]
C.A. No. 489 of 2011
[@ SLP [C] No.1931/2005]
C.A. No. 490 of 2011
[@ SLP [C] No.1933/2005]
C.A. No. 491 of 2011
[@ SLP [C] No.1934/2005]
C.A. No. 492 of 2011
[@ SLP [C] No.1939/2005]
C.A. No. 493 of 2011
[@ SLP [C] No.13832/2006]
C.A. No. 494 of 2011
[@ SLP [C] No.13851/2006]
C.A. No. 495 of 2011
[@ SLP [C] No.14084/2006]
JUDGMENT
R.V.RAVEENDRAN, J.
1.
Leave
granted.
2.
The
first matter relates to persons temporarily appointed as Assistant Superintendents
in 1985 and 1986 in aided hostels. The prefix `Assistant 'was omitted in 1996
and thereafter the respondents were known as Superintendents. The second matter
relates to a person temporarily appointed as a Superintendent on 30.6.1998 in
an aided hostel. They filed writ petitions contending that they were employed
on full-time basis and were discharging functions similar to those of
Superintendents in Government hostels, but were being paid only a meager salary
while their counterparts in Government hostels are paid much higher pay in the
scale ofRs.4000-6100 in the category (A) and (B) Hostels and Rs.3200-4900 in category
`C' hostels. They sought regularization in the posts of Hostel Superintendent
from the date of initial appointment and payment of salary on par with hostel
Superintendent of class `C' hostels of the Social WelfareDepartment.
3.
The
respective respondents in the remaining eight appeals, claim that they were
appointed in the years 1995, 1996, 1997 and 1998, as part-time cooks/chowkidars
in government hostels run by Social Welfare Department. They claim that their
appointment orders were issued by the respective Mess Committee of the hostel
where they were employed; that the State Government was paying a fixed amount
of Rs.600/- per month in the form of aid to the concerned Hostel Mess Committee
which, in turn, was being paid to them as remuneration. The State Government
issued an order dated 28.12.1998, stopping the practice of appointing Class IV
employees on consolidated wages and to remove any person appointed on that
basis. By subsequent circular dated 21.1.1999, the District Social Welfare
Officers were directed to remove part time chowkidars/cooks employed by the Department
with effect from 1.2.1999 and replace them by ex-servicemen or widows of
ex-servicemen.
In view of the
Government directives, the respondents apprehended their services may be
dispensed with. [The services of two of the respondents - Madan Lal Yogi and
Kurda Ram who were appointed on 15.7.1995 and 1.7.1995 respectively were
however terminated even earlier, on 17.3.1997 and 28.12.1998]. The respondents submitted
that this Court had earlier approved a scheme under which part time cooks and chowkidars
who were working as on 1.5.1995 were regularized; and that as they
(respondents) were all appointed subsequent to1.5.1995 and were not therefore
covered under the said scheme, a fresh scheme should be framed to benefit them.
They therefore sought a declaration that the circulars dated 28.12.1998 and
1.2.1999, were invalid and a direction for regularization by framing an
appropriate scheme similar to the scheme framed by the State Government in
pursuance of the order dated 26.5.1995 of the Rajasthan High Court in WP
No.3453/1994 --Anshkalin Samaj Kalyan Sangh, Banswara vs. The State of
Rajasthan.
4.
In
the first seven appeals, a learned Single Judge by a common order dated
7.5.2003 allowed the writ petitions. He held that the writ petitioners working
on the posts of Superintendent, Cooks and Chowkidars are entitled to salary on
par with the salary which was paid to their counter parts holding similar posts
in the hostels run by the Social Welfare Department of the State Government
with effect from the dates of their respective writ petitions. He also held
that any attempt to terminate the services of employees working in the hostels
on consolidated salary was unjust and illegal and therefore the writ
petitioners should be permitted to continue to work on the posts which they
were holding as on the date of filing their respective writ petitions. He
directed the State Government to frame a scheme on the same lines in which the
State Government had earlier framed a scheme relating to part-time cooks and
chowkidars (who were serving as on 1.5.1995).
He also quashed the
orders dated 28.12.1998 and 21.1.1999(which directed chowkidars and cooks
employed on consolidated wages should be removed with immediate effect from
1.2.1999 and should be replaced by ex-servicemen or widows of ex-servicemen).
The scheme referred to by the learned Single Judge was the scheme which was
framed by the State Government in pursuance of the directions of the Rajasthan
High Court in Anshkalin Samaj Kalyan Sangh (supra) which was approved by this court
in 1996 (in CA No.365/1994 - State of Rajasthan vs. Mod Singh).Feeling
aggrieved, the State filed appeals which were dismissed by a common judgment
dated 16.8.2004. The said judgments are challenged in the first seven appeals
by the State and its functionaries.
5.
In
the next two appeals, a learned Single Judge by common order dated 5.2.2001
allowed the writ petitions of the respondent in terms of the following
directions issued in Anshkalin Samaj Kalyan Sangh (supra) : "In the
circumstances of the case, it would be just and proper to direct that the
Chowkidars and Cooks employed in the hostels run by the Government or
Government aided institutions, shall be paid at the rate of the minimum of the
pay scale applicable to Class IV employees and Cooks in the Government
employment respectively from the date of their filing of the petition. In cases
of those who have filed the petition, in cases of those who have not filed the
petition, it shall be paid from the date of this order.
So far as the
regularization is concerned, the cases of all such employees who have put in
service of five years or more shall be immediately taken up for consideration
for regularization and scheme for regularization of their services shall be
framed and put into effect within a period of six months from today. A scheme
for regularization of employment of such employees who have not completed five
years service shall also be framed within a reasonable time by the Government.
These directions shall be applicable in the cases of all the employees
similarly situated working in the hostels under the Social Welfare Department
of the State irrespective of the fact whether such employees have filed
petitions in this Court or not. The benefit of this Order shall be available to
only those employees who were in service on the day of filing of petition or
the date of this order as the case may be." The writ appeals filed by the
State against the said order were dismissed by a division bench by common order
dated 16.11.2005.
6.
In
the last appeal (relating to Kurda Ram), the writ petition for regularization
was dismissed by a learned Single Judge by order dated3.5.1999. However, the
special appeal filed by the respondent was allowed by order dated 2.12.2005 and
the order of termination was set aside following the decision dated 16.8.2004
(which is the subject matter of the first seven appeals). The division bench
observed that the respondents' case may be considered in the light of the
decision of this court in the pending challenge to the order dated 16.8.2004.
7.
Two
questions therefore arise for consideration in these appeals :
i.
Whether
persons appointed as Superintendents in aided non- governmental Hostels are
entitled to claim absorption by way of regularization in government service or
salary on par with Superintendents in Government Hostels?
ii.
Whether
part-time cooks and chowkidars appointed temporarily by Mess Committees of
Government Hostels, with two or three years service, are entitled to
regularization by framing a special scheme?
8.
We
may at the outset refer to the following well settled principles relating to
regularization and parity in pay, relevant in the context of these appeals:
i.
High
Courts, in exercising power under Article 226 of the Constitution will not
issue directions for regularization, absorption or permanent continuance,
unless the employees claiming regularization had been appointed in pursuance
of a regular recruitment in accordance with relevant rules in an open
competitive process, against sanctioned vacant posts. The equality clause
contained in Articles 14 and 16 should be scrupulously followed and courts
should not issue a direction for regularization of services of an employee
which would be violative of constitutional scheme. While something that is irregular
for want of compliance with one of the elements in the process of selection
which does not go to the root of the process, can be regularized, back door
entries, appointments contrary to the constitutional scheme and/or appointment
of ineligible candidates cannot be regularized.
ii.
Mere
continuation of service by an temporary or ad hoc or daily-wage employee,
under cover of some interim orders of the court, would not confer upon him any
right to be absorbed into service, as such service would be `litigious
employment'. Even temporary, ad hoc or daily- wage service for a long number
of years, let alone service for one or two years, will not entitle such
employee to claim regularization, if he is not working against a sanctioned
post. Sympathy and sentiment 8 cannot be grounds for passing any order of
regularization in the absence of a legal right.
iii.
Even
where a scheme is formulated for regularization with a cut off date (that is a
scheme providing that persons who had put in a specified number of years of
service and continuing in employment as on the cut off date), it is not
possible to others who were appointed subsequent to the cut off date, to claim
or contend that the scheme should be applied to them by extending the cut off
date or seek a direction for framing of fresh schemes providing for successive
cut off dates.
iv.
Part-time
employees are not entitled to seek regularization as they are not working
against any sanctioned posts. There cannot be a direction for absorption,
regularization or permanent continuance of part time temporary employees.
v.
Part
time temporary employees in government run institutions cannot claim parity in
salary with regular employees of the government on the principle of equal pay
for equal work. Nor can employees in private employment, even if serving full
time, seek parity in salary with government employees. The right to claim a particular
salary against the State must arise under a contract or under a statute.(See :
Secretary, State of Karnataka vs. Uma Devi - 2006 (4) SCC 1, M. Raja vs. CEERI
Educational Society, Pilani - 2006 (12) SCC 636, S.C. Chandra vs. State of
Jharkhand - 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd vs.
Mehar Chand - 2007 (15) SCC 680, and Official Liquidator vs. Dayanand - 2008
(10 SCC 1)
9.
As
noticed above, the respondents in these appeals were appointed in pursuance of
the Government & Aided Hostels Management Rules, 1982which were issued by
the State Government on 18.1.1982. Though they were referred to as Rules, they
were not statutory rules framed by the State Government in pursuance of any
power vested in the State by the legislature under any enactment. They were
more in the nature of executive instructions and guidelines framed for
administrative convenience. The said rules were intended to apply to Government
hostels run by the Social Welfare Department as also aided hostels which
received any aid in the form of grant from the Social Welfare Department.
We may refer to the
relevant provisions of these Rules.9.1) Rule 5 indicated the staff pattern in
Government Hostels. Clause (2)of Rule 5 provided that every government hostel
should have an Assistant Superintendent and the salary of the Assistant
Superintendent in `A' and `B' category hostels will be in the pay scale of
Rs.385-650 and in `C' category hostels, the salary will be in the pay-scale of
Rs.350-570. Clauses (4), (5)and (6) of Rule 5 provided that every hostel will
have one temporary Doctor(who will be paid a monthly conveyance allowance of
Rs.75/- in `A' & `B' category Hostels and Rs.50/- in `C' category Hostels),
a Class IV employee who was to stay in the hostel by being provided
accommodation and a Safai Karamchari who was to be appointed on temporary
basis.9.2) Clause 9 provided that every Government hostel will have a Mess Committee
consisting of Superintendent/Warden as the President, one elected Secretary
from among the students, five other students as members and an Assistant
Superintendent as accountant-cum-cashier. Clause (3) of Rule 9 provided that
the Mess Committee will arrange for the food, breakfast, water, electricity,
clothes, hair-cutting, soap, oil and shoes etc. for the students for which the
Government would pay to the Mess Committee a sum of Rs.80/- per student
(relating to students of Classes 6 to 8) andRs.85/- per month (relating to
students of Classes 9 to 11). For every academic session, the Government would
also pay in a lump sum to the District Officer, a sum calculated at the rate of
Rs.60/-per student (for classes 9 to 11) and Rs.40/- per student (for classes 6
to 8) for providing books, stationery and fees for the students in the Hostels.
Clause (7) of Rule 9
provided that Mess Committee of Government Hostels will not be provided
departmental cooks but each Mess Committee will be given a grant of Rs.250/-
per month per cook and the number of cooks will be decided with reference to
the number of students (one cook for 25 students) and the appointment of cooks
will be on part-time basis for ten months in a year.9.3) Rule 11 related to
recognition of aided hostels and their management. Clause (1) thereof provided
that registered voluntary service organizations are required to submit
applications to the Director for management of hostels, recognition and
permission of grant. Clause (2) provided that the Director, Social Welfare
Department, will dispose of the applications taking note of the availability of
sufficient building and other sources,
whether sufficient
means for meeting the necessary expenses are available with the organization in
the proposed hostel, whether the organization is capable of providing the
prescribed facilities in the hostel. Clause (3) provided that one of the
conditions for sanction of the hostel is the admission of students belonging to
scheduled castes, scheduled tribes and backward classes as declared by the
Government from time to time. Clause (5) of Rule 11provided that 90% of the
amount payable by the Social Welfare Department to the Aided Hostels (for
providing food, clothes etc. to the students) will be paid to the account of
the Mess Committee (calculated with reference to the number of students) and
grant for fees and books of the students will be distributed by the District
Offices. It further provided that the expenses on the salary and allowances of
Assistant Superintendent, class IV employees appointed by the Aided
organization, cost of fixed assets and rent of building will be borne by the
aided organization which runs the hostel.
Re : Question
(i) - First two
appeals relating to aided hostels
10.
It
is thus evident that insofar as aided hostels were concerned, the Government
was liable only to extend aid by way of a grant to students of 6to 8 standards
and students of 8 to 11 standards, staying in such hostels, to meet the
expenditure of food, water, electricity, clothes, hair-cutting, soap, oil and
shoes and another grant for books and stationery of such students. The
Government was not liable to bear the expenses of salary and allowances of the
employees of the aided hostels and it was for the private organizations which
ran the aided hostels to meet the salaries of employees from their own
resources.
The persons employed
in the aided hostels were the employees of the respective organizations running
those hostels and not the employees of the Government. The Government has
merely prescribed the eligibility conditions to be fulfilled by the private
organizations to get grants to meet the food and education expenses of students
staying in such hostels. Therefore under no stretch of imagination persons
employed by the aided hostels could be termed as persons employed by the State Government.
Nor could the Government be held liable for their service conditions,
absorption, regularisation or salary of employees of private hostels.
If the employees
(either permanent or temporary) of the aided hostels are not the employees of
the Government, but of the aided private charitable organizations which run
such aided hostels, they could not obviously maintain any writ petition
claiming the status or salary on par with the corresponding post-holders in
State Government service, nor claim regularization of service under the state
government. Hence, the writ petitions by persons employed in aided hostels for
relief of regularization or parity in pay, were not maintainable and the
decision of the High Court granting any relief to them cannot be sustained. Re
: Question
(ii) - The other
appeals relating to part-time cooks/chowkidars in government hostels.
11.
The
part-time cooks and chowkidars were employed on temporary basis in the
Government hostels in the years 1995, 1996, 1997 and 1998.They approached the
High court in the year 1999 (except Madan Lal Yogi who approached in the year
1997). The services of some of them had been terminated within one or two years
from the date of temporary appointment. Though the State had taken a decision
to terminate all those who were appointed on consolidated wage basis, the other
respondents continued because of the interim orders by courts. Service for a
period of one or two years or continuation for some more years by virtue of
final orders under challenge, or interim orders, will not entitle them to any
kind of relief either with reference to regularization nor for payment of
salary on par with regular employees of the Department.
12.
The
decision relied upon by the High Court namely the decision in Anshkalin Samaj
Kalyan Sangh of the High Court no doubt directed the state government to frame
a scheme for regularization of part-time cooks and chowkidars. It is clear from
the said decision, that such scheme was intended to be an one-time measure.
Further said decision was rendered by the High Court prior to Uma Devi, relying
upon the decision of this Court in Daily Rated Casual Labour vs. Union of India
[1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Development
Corporation [1990 (1) SCC361] and Dharwad District PWD Literate Dalit Wage
Employees Association vs. State of Karnataka [1990 (2) SCC 396]. These
directions were considered, explained and in fact, overruled by the Constitution
Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good
law. At all events, even if there was an one time scheme for regularisation of
those who were in service prior to 1.5.1995, there cannot obviously be
successive directions for scheme after scheme for regularization of irregular
or part-time appointments. Therefore the said decision is of no assistance. Conclusion
13.
In
view of the above, both the questions are answered in the negative and in
favour of the appellants. Therefore, none of the respondents is entitled to any
relief. All the appeals are allowed and the orders of the High Court challenged
in these appeals are set aside. Consequently, the writ petitions filed by the
respondents before the High Court stand dismissed.
............................J.
(R V Raveendran)
............................J.
(Markandey Katju)
New
Delhi;
January
13, 2011.
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