Rajasthan High Court - Jodhpur

Gayatri Sharma vs State Of Rajasthan on 14 December, 2022

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4501/2022

Gayatri Sharma W/o Shri Mahaveer Sharma, Aged About 37 Years, B/c Brahmin, R/o Near Senior Secondary School, Ched Amli, Via Gangapur, District Bhilwara. Presently Working As Cook In Govt. Ambedkar Boys Hostel Ched Amli, District Bhilwara.

----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, Bhilwara.

----Respondents

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

JUSTICE DINESH MEHTA

Order

14/12/2022 I.A. No.1/2022:

Considering that the matter stands covered by the decision

of the coordinate Bench of this Court dated 01.12.2022, rendered

in the case of Kanhaiya Lal Vs. State of Raj. & Ors. (S.B. Civil Writ

Petition No.3595/2022), the application seeking early hearing is

allowed. The matter is taken up today itself.

S.B. Civil Writ Petition No.4501/2022:

This writ petition has been filed by the petitioner aggrieved

against the order dated 16.02.2022 (Annex.P/2), passed by the

(2 of 5) [CW-4501/2022]

respondents, whereby, the representation made by the petitioner

has been rejected.

The petitioner had approached this Court on earlier occasion

by filing writ petition (being S.B. Civil Writ Petition No.16978/21),

seeking directions to the respondents to make payment of wages

to him at the minimum of the applicable pay scales.

This Court, on noticing the submissions made by learned

counsel for the petitioner 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 25.04.2017 at

Jaipur Bench, disposed of the petition directing the petitioner 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 eight weeks in accordance

with law and the law laid down in the case of Anokh Bai (supra).

The representation filed by the petitioner came to be decided

by the impugned order, whereby, the Director and Joint Secretary,

Social Justice and Empowerment Department passed the following

order :-

"iatkc jkT; cuke txthr flag esa ekuuh; loksZPp U;k;ky; }kjk ikfjr vkns'k ds vk/kkj ij ekuuh; jktLFkku mPp 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 mDr izdj.k esa ikfjr vkns'k fnukad 09-12-2021 esa ;kfpddrkZ dk vH;kosnu txthr flag ds izdj.k ds vk/kkj ij fuLrkj.k djus dk vkns'k fn;k gSA txthr flag ds izdj.k esa ;kph dks prqFkZ Js.kh deZpkjh ds osrueku dk U;wure osru fn;s tkus dk vkns'k ikfjr fd;k x;k gSA ekuuh; mPpre U;k;ky; }kjk iatkc LVsV o vU; cuke txthr falg o vU; esa ikfjr fu.kZ; fnukad 26-10-2016 esa fn, x, funsZ'kksa fuEu funsZ'k fn, x, gSa %& We say so, because it was fairly acknowledge by the learned Counsel representing the State of Punjab,

(3 of 5) [CW-4501/2022]

that all the temporary employees in the present bunch of appeals, were appointed against post, which are also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time.

There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of pay-scale of regularly engaged Government employees, holding the same post.

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 instrumentallities for a sufficient long period i.e. for 10 years, such daily wages, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, and equitable right is created in such category of persons. Their claim for regularisation, if any, may have to be considered separately in terms of legally permissible scheme.

;kfpdkdrkZ dh vksj ls izLrqr vH;kosnu dk lgk;d funs'kd] lkU;kvfo] HkhyokM+k ls izkIr fjiksVZ ds vk/kkj ij ijh{k.k djus ij ik;k x;k fd Jherh xk;=h 'kekZ dks IysleasV ,tsalh ds ek/;e ls fnukad 01- 07-2013 dks dk;Z ij j[kk x;k Fkk ftlds vk/kkj ij ;kph yxHkx 08 o"kZ 07 ekg ls dk;Z dj jgh gSA Nk=kokl v/kh{kd] jktdh; vEcsMdj Nk=kokl] vkeyh] ftyk HkhyokM+k }kjk budk dk;Z larks"ktud crk;k x;k gS rFkk budh tUe frfFk 05-04-1984 gksus ds vk/kkj ij vk;q 37 o"kZ 10 ekg ,oa 'kS{kf.kd ;ksX;rk mPp ek/;fed ijh{kk mRrh.kZ gSA ;kfpdkdrkZ dks mDr Nk=kokl esa fu;fer in ds fo:) dk;Z ij ugha j[kk x;k Fkk cfYd ;kfpdkdrkZ tkWc csfll ij lsok iznkrk ,tsalh ds ek/;e ls va'kdkyhu rkSj ij dk;Zjr gSA Jherh xk;=h 'kekZ] 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 ,oa fu;fer in ds fo:) dk;Zjr ugha gksus ds dkj.k prqFkZ Js.kh deZpkjh dh osru J`a[kyk dk U;wure osru ds fy, ik=rk ugha j[krh gSA ekuuh; U;k;ky; }kjk foHkkxh; Nk=koklksa esa dk;Zjr va'kdkyhu 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 txthr flag ds izdj.k esa ikfjr fu.kZ; ds vk/kkj ij prqFkZ Js.kh deZpkjh in dh 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 ekuuh; U;k;ky; ds vkns'k dh ikyuk esa izLrqr vH;kosnu dk fuLrkj.k mijksDrkuqlkj fd;k tkrk gSA"

(emphasis supplied)

(4 of 5) [CW-4501/2022]

Learned counsel for the petitioner submitted that identical

writ petitions came to be disposed of by the coordinate Bench of

this Court vide its order dated 01.12.2022, passed in Kanhaiya Lal

Vs. State of Raj. & Ors. (S.B. Civil Writ Petition No.3595/2022)

and petitioner's case is also identical.

In the case of Kanhaiya Lal (supra), this Court has held

thus:-

"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 petition filed by the petitioner is allowed. The order dated 16.11.2021 (Annex.P/2), denying minimum of the pay scale to the petitioner only on account of him

(5 of 5) [CW-4501/2022]

having worked for less than 10 years is quashed and set aside.

The respondents are directed to accord the

benefit of minimum of the pay scale to the petitioner from the date the writ petition filed in earlier round of litigation came to be decided by this Court, as indicated hereinbefore.

Needful be done by the respondents within a period of four weeks from the date of this order."

Following the judgment in the case of Kanhaiya Lal (supra),

the present writ petition is also allowed.

The respondents are directed to accord the benefit of

minimum of the pay scale to the petitioner from the date his writ

petition filed in earlier round of litigation came to be decided by

this Court.