Rajasthan High Court - Jodhpur

Smt. Jamna Bai vs State Of Rajasthan on 1 December, 2022

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3595/2022

Kanhaiya Lal S/o Shri Jeeva Ram Roat, Aged About 25 Years, By Caste Bhil (S.t.), Resident Of Kahari, Tehsil And District Dungarpur. Presently Working As Cook In Govt. Ambedkar Boys Hostel Nawa Dera, District Dungarpur.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Social Welfare Department, Rajasthan, Jaipur.

2. The Director, Social Welfare Department, Jaipur.

3. The Assistant Director, Social Welfare Department, Dungarpur.

----Respondents Connected With S.B. Civil Writ Petition No. 17734/2021 Sona Ram S/o Shri Lachha Ram, Aged About 42 Years, B/c Dewasi (Mbc/sbc), R/o Rabariya Ki Dhani, Sanchore District Jalore. Presently Working As Chowkidaar In Govt. Adarsh Dev Narayan Boys Hostel Sanchore, District Jalore.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Social Welfare Department, Rajasthan, Jaipur.

2. The Director, Social Welfare Department, Jaipur.

3. The Assistant Director, Social Welfare Department, Jalore.

----Respondents S.B. Civil Writ Petition No. 4201/2022 Brijesh Gauttam S/o Shri Kishanlal Gauttam, Aged About 44 Years, By Caste Brahmin, R/o Baler Road, Basi Mohalla, Khandhar, District Sawai Madhpur. Presently Working As Chowkidaar In Govt. Ambedkar Boys (S.t.) Hostel Khandhar, District Sawai Madhopur.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Social Welfare Department, Rajasthan, Jaipur.

2. The Director, Social Welfare Department, Jaipur.

(2 of 10)

3. The Assistant Director, Social Welfare Department, Sawai Madhopur.

----Respondents S.B. Civil Writ Petition No. 4244/2022 Smt. Anita Devi Gautam W/o Shri Brijesh Gauttam, Aged About 42 Years, By Caste Brahmin, R/o Baler Road, Bassi Mohalla, Khandhar, District Sawai Madhopur. Presently Working As Cook In Govt. Ambedkar Boys (S.t.) Hostel Khandhar, District Sawai Madhopur.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Social Welfare Department, Rajasthan, Jaipur.

2. The Director, Social Welfare Department, Jaipur.

3. The Assistant Director, Social Welfare Department, Sawai Madhopur.

----Respondents

S.B. Civil Writ Petition No. 4822/2022

1. Sharwan Ram S/o Dhanna Ram, Aged About 51 Years, Village Gorau, Tehsil Jayal, District Nagaur (Raj.).

2. Chuki W/o Sharwan Ram, Aged About 49 Years, Village Gorau, Tehsil Jayal, District Nagaur (Raj.).

3. Harphool S/o Bhera Ram, Aged About 37 Years, Village Genana, Tehsil Ladnu, District Nagaur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Secretary, Department Of Social Justice And Empowerment, Government Of Rajasthan, Jaipur (Raj.).

2. The Director Cum Joint Secretary, Department Of Social Justice Empowerment, Government Of Rajasthan, Jaipur (Raj.).

3. The District Social Welfare Officer, Department Of Social Justice And Empowerment, Nagaur (Raj.).

----Respondents

S.B. Civil Writ Petition No. 1304/2022

Smt. Jamna Bai W/o Shri Mukesh Kumar, Aged About 31 Years, By Caste Meghwal (S.c.), R/o Village Ramthi, Post

(3 of 10)

Rampuriya, Tehsil Pirawa, District Jhalawar. Presently Working As Cook In Govt. Ambedkar Boys Hostel Gangdhar, District Jhalawar.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Social Welfare Department, Rajasthan, Jaipur.

2. The Director, Social Welfare Department, Jaipur.

3. The Assistant Director, Social Welfare Department, Jhalawar.

----Respondents

For Petitioner(s) : Mr. Mahipal Rajpurohit. For Respondent(s) : Mr. Anil Kumar Gaur, AAG.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

01/12/2022

These writ petitions have been filed by the petitioners

aggrieved against the orders dated 10/9/2021 (Annex.P/2 in CW

No. 3595/22), 10/9/2021 (Annex.P/2 in CW No.17734/21),

4/2/2022 (Annex.P/3 in CW No. 4201/2022), 4/2/2022

(Annex.P/2 in CW No. 4244/2022), 10/9/2021 (Annex.3 in CW

No.4822/2022) and 16/11/2021 (Annex.P./2 in CW

No.1304/2022) passed by the respondents, whereby, the

representations made by the petitioners have been rejected.

The petitioners had approached this Court on earlier occasion

by filing writ petitions, seeking directions to the respondents to

make payment of wages to them at the minimum of the applicable

pay scales as under:

(4 of 10)

S.No. CWP No. Name of Petitioner/s Earlier CWP No. Decided on

1. 3595/22 Kanhaiya Lal 1471/21 27/1/21

2. 17734/21 Sona Ram 4734/21 17/3/21

3. 4201/22 Brijesh Gauttam 15678/21 23/11/21

4. 4244/22 Anita Devi Gauttam 15655/21 25/11/21

5. 4822/22 Sharwan Ram & Ors. 13678/20 12/1/21

6. 1304/22 Smt.Jamna Bai 9381/21 26/7/21

A coordinate Bench of this Court, on noticing the submissions

made by learned counsel for the petitioners that the issue raised

was similar to Anokh Bai vs.State of Rajasthan & Ors. : S.B.Civil

Writ Petition No.372/2013 & other connected matters decided on

25/4/2017 at Jaipur Bench, disposed of the petitions directing the

petitioners to file representation along with copy of the judgment

in the case of Anokh Bai (supra) and the respondents were

directed to decide the representation within a period of 08 weeks

in accordance with law and the law laid down in the case of Anokh

Bai (supra).

The representations filed by the petitioners came to be

decided by the impugned orders, whereby, the Director and Joint

Secretary, Social Justice Empowerment Department passed the

following nature order in all the cases:

"ekuuh; U;k;ky; }kjk vuks[k ckbZ ds izdj.k eas ikfjr fu.kZ; fnuakd 25-04-2017 es prqFkZ Js.kh deZpkjh dh osru J`a[kyk dk U;wure fn, tkus gsrq in dh vko';d ;ksX;rk ds lac/k esa bl izdkj mYys[k gS & To become entitle for minimum of the pay scale, one has to show required qualification and working against the sanctioned post.

prqFkZ Js.kh deZpkjh dh U;wure 'kS{kf.kd ;ksX;rk ikapoha mRrh.kZ gSA ;kfpdkdrkZ ds vH;kosnu dk ftykf/kdkjh] Mwaxjiqj ls izkIr fjiksVZ ds vk/kkj ij ijh{k.k djus ij ik;k x;k fd Jh dUgS;k yky dks fnukad 01-07-2017 dks IysleasV ,tsalh ds ek/;e ls dk;Z ij j[kk x;k gS] ftlds vk/kkj ij ;kph yxHkx 04 o"kZ ls dk;Z dj jgk gS rFkk Nk=kokl v/kh{kd] jktdh; vEcsMdj Nk=kokl] Mawxjiqj }kjk dk;Z larks"ktud crk;k x;k gS] budh tUe frfFk 08-02-1995 gksus ds vk/kkj ij vk;q 26 o"kZ ,oa 'kS{kf.kd ;ksX;rk mPp ek/;fed ijh{kk mRrh.kZ gSA Jh dUgS;k yky] vuks[k ckbZ ,oa iatkc LVsV o vU; cuke txthr flag o vU; ds izdj.k esa ekuuh; U;k;ky; }kjk ikfjr fu.kZ; ds vuqlkj 10 o"kZ dh lsok iw.kZ ugha djus ds dkj.k prqFkZ Js.kh deZpkjh dh osru J`a[kyk dk U;wure osru ds fy, ik=rk ugha j[krk gS A ekuuh; U;k;ky; }kjk foHkkxh; Nk=koklksa esa dk;Zjr va'kdkyhu

(5 of 10)

jlksb;[email protected] ds laca/k esa fuf.kZr izdj.kksa ds fuLrkj.k gsrq foHkkx } kjk xfBr foHkkxh; lfefr }kjk Hkh ;kph dks ekuuh; U;k;ky; }kjk vuks[k ckbZ izdj.k esa ikfjr fu.kZ; ds vk/kkj ij prqFkZ Js.kh deZpkjh in dk osru J`a[kyk dk U;wure osru 17][email protected]& :i;s izfrekg ugha fn;s tkus dh vuq'ka"kk dh x;h gSA vr% ;kfpdkdrkZvksa dk vH;kosnu mDrkuqlkj vuks[k ckbZ izdj.k la[;k [email protected] ds fu.kZ; fnukad 25-04-2017 ds vuq:i ugha ik;k tkrk gSA ekuuh; U;k;ky; ds vkns'k dh ikyuk esa izLrqr vH;kosnu dk fuLrkj.k mijksDrkuqlkj fd;k tkrk gSA"

(emphasis supplied)

Learned counsel for the petitioners made submissions that

action of the respondents in rejecting the representations of the

petitioners by holding that as the petitioners have not completed

10 years' of service, they are not entitled to the minimum of pay

scale, is ex facie incorrect and contrary to the law laid down in the

case of Anokh Bai (supra) and State of Punjab & Ors. vs. Jagjit

Singh & Ors. : (2017) 1 SCC 148.

Submissions were made that the authority while deciding the

representations has quoted from the judgment in the case of

Jagjit Singh (supra) selectively and ignoring the ratio, the

requirements have been indicated, which were part of the

judgment of the Punjab & Haryana High Court, which came to be

reversed by the Supreme Court in the said judgment and,

therefore, the orders impugned deserve to be quashed and set

aside.

Submissions have been made that the Hon'ble Supreme

Court has, in categorical terms, reversed the requirement of

having served for 10 years as a pre-requisite for the purpose of

entitlement to minimum of the pay scale and, therefore, the

determination made by the respondents in this regard deserves to

be set aside.

Learned AAG supported the orders impugned.

(6 of 10)

It was submitted with reference to the order of the learned

Single Judge in Hans Raj & Ors. vs. State of Punjab & Ors. : CWP

No. 116/2009 decided on 9/7/2009 by Punjab & Haryana High

Court that the petitioners therein had put in service for over 10

years and, therefore, the determination made by the respondents

in this regard requiring 10 years' engagement for the purpose of

granting minimum of the pay scale cannot be faulted. It was

prayed that the petitions be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A coordinate Bench of this Court in the case of Anokh Bai

(supra) after referring to the judgment in the case of Jagjit Singh

(supra) and noticing that the petitioners therein were working on

the post of Cook and Watchman 'for last many years' also

observed that a person cannot be continued for years together

without there being a sanctioned post (in the said case for 15

years) and ultimately directed as under:

"In the light of the discussion made above, I am inclined to accept the prayer made by the petitioners for grant of wages at the rate of minimum of pay scale for the post of Cook and Watchman while denying the benefit of regularization sought by them, as otherwise not pressed by the petitioners.

All the writ petitions are accordingly allowed with the direction to the respondents to pay wages to the petitioners at the rate of minimum of the pay scale. The benefit aforesaid would be given to the petitioners from the date of pronouncement of the judgment."

Nowhere in the judgment, the Court indicated the

requirement of the petitioners therein to have worked for 10 years

for the purpose of getting the minimum of the pay scale.

In the case of Jagjit Singh (supra), the Hon'ble Supreme

Court was inter alia hearing challenge to the Full Bench judgment

of Punjab & Haryana High Court in Avtar Singh vs. State of Punjab

(7 of 10)

& Ors. : CWP No. 14796/2003 decided on 11/11/2011, which Full

Bench was formed for resolving the conflicting decisions in State

of Punjab & Ors. vs. Rajinder Singh & Ors. : LPA No. 337/2003

decided on 7/1/2009 and State of Punjab & Ors. vs. Rajmder

Kumar & Ors. : LPA No. 1024/2009 decided on 30/8/2010.

The Full Bench inter alia overruled the Division Bench

judgment in LPA No. 1024/2009 and approved the judgment in

LPA No. 337/2003 and further observed as under:

"(37) However, it is also noticed that certain daily wagers are permitted to continue for long number of years. Keeping in view the ratio of the aforesaid judgments, we hold that daily wagers, ad hoc or contractual appointees are not entitled to minimum of the regular pay scale from the date they were engaged merely for the reason that the physical activity carried out by the daily wager and the regular employee is similar, but such general principle shall be subject to the following exceptions: (1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.

(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for as sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pays scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of the legally permissible scheme.

(3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."

The Hon'ble Supreme Court in the case of Jagjit Singh

(supra) qua the said two Division Bench judgments and the Full

Bench judgment, inter alia came to the following conclusion:

(8 of 10)

"55. In view of all our above conclusions, the decision rendered by the Full Bench of the High Court in Avtar Singh v. State of Punjab & Ors., dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the Division Bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. is also liable to be set aside, and the same is also hereby set aside. We affirm the decision rendered in State of Punjab & Ors. v. Rajinder Kumar, with the modification, that the employees concerned would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them."

From the above, it would be seen that the determination

made by the Full Bench requiring 10 years' service for the purpose

of getting the minimum of the pay scale has been reversed by the

Hon'ble Supreme Court and the determination made in LPA No.

1024/2009 decided on 30/8/2010 was affirmed with modification.

The Hon'ble Supreme Court specifically dealt with the aspect

of Full Bench providing for having worked for 10 years and came

to the following conclusion:

"54.1 A perusal of the above conclusion drawn in the impugned judgment (passed by the Full Bench), reveals that the Full Bench carved an exception for employees who were not appointed against regular sanctioned posts, if their services had remained continuous (with notional breaks, as well), for a period of 10 years. This category of temporary employees, was extended the benefit of wages at the minimum of the regular pay scale. In Uma Devi case, similarly, employees who had rendered 10 years' service were granted an exception (refer to paragraph 53 of the judgment, extracted in the preceding paragraph). The above position adopted by the High Court reveals, that the High Court intermingled the legal position determined by this Court on the subject of regularization of employees, while adjudicating upon the proposition of pay parity, emerging under the principle of 'equal pay for equal work'. In our view, it is this mix-up, which has resulted in the High Court recording its afore-extracted conclusions.

54.2 The High Court extended different wages to temporary employees by categorizing them on the basis of their length of service. This is clearly in the teeth of judgment in the Daily Rated Casual Labour case. In the above judgment, this Court held that classification of employees based on their length of service ( those who had not completed 720 days of service, in a period of 3 years; those who had completed more than 720 days of service - with effect from 1.4.1977; and those who had

(9 of 10)

completed 1200 days of service), for payment of different levels of wages (even though they were admittedly discharging the same duties), was not tenable. The classification was held to be violative of Articles 14 and 16 of the Constitution.

54.3 Based on the consideration recorded hereinabove, the determination in the impugned judgment rendered by the Full Bench of the High Court, whereby it classified temporary employees for differential treatment on the subject of wages, is clearly unsustainable, and is liable to be set aside."

(emphasis supplied)

A specific determination was made by the Hon'ble Supreme

Court holding that the said requirement was a result of

intermingled legal position determined by the Supreme Court on

the subject of regularization of employees while the issue before

the Court was pay parity and that the determination was in teeth

of the judgment in Daily Rated Casual Labour vs. Union of India :

(1988) 1 SCC 122.

In view of the above categorical pronouncement of the

Hon'ble Supreme Court on the aspect of period for which the

petitioners are required to work for the purpose of getting

minimum of the pay scale, the determination made by the

respondents requiring the petitioners to have worked for a

minimum of 10 years cannot be sustained.

In all the cases, on other aspects i.e. the minimum

qualification and satisfactory working of the petitioners, the

authority has held in favour of the petitioners.

In view of the above discussion, the petitions filed by the

petitioners are allowed. The orders dated 10/9/2021 (Annex.P/2 in