Sukhdev And Ors vs State And Ors
2023 Latest Caselaw 454 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13269/2016

1. Sukhdev S/o Kanji Tabiyar, Village/post Kesharpura, Tehsil Gadi, Dist. Banswara.

2. Mangi Lal S/o Haklaji Singada, Village Kotda, Tehsil Gadi, Dist. Banswara.

3. Daya Lal S/o Kuriya Ji Patidar, Village Lokiya, Post Arthuna, Tehsil Gadi, District Banswara.

4. Ram Lal S/o Chatura Ji Damor, Village Kanala, Post Chandrawada, Tehsil Bigidora, Dist. Banswara.

----Petitioners Versus

1. State Of Rajasthan Through Secretary, Scoial Justice And Empowerment Department, Govt. Of Rajasthan, Jaipur.

2. The Director, Social Justice And Empowerment Department, Govt. Of Rajasthan, Jaipur.

3. The Assistant Director, Social Justice And Empowerment Department, Banswara.

                                                                 ----Respondents


For Petitioner(s)           :    Mr. A.K. Choudhary
For Respondent(s)           :    Mr. Anil Kumar Gaur, AAG



               HON'BLE MS. JUSTICE REKHA BORANA

                                     Order

11th January, 2023

The present writ petition is the second round of litigation. At

the first instance, the present petitioners preferred the writ

petitions for regularization of their services on the premise that

they were the persons temporarily appointed as Assistant

Superintendent in the year 1995 and 1996 in Government Aided

Hostels and continued to work as such for more than 10 years.

The said writ petitions of the petitioners were allowed and the

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Special Appeals against the same preferred by the State were also

dismissed. State preferred SLPs (led by Civil Appeal No.486 of

2011; State of Rajasthan & Ors. Vs. Daya Lal & Ors.) before

the Hon'ble Apex Court in which a specific question was framed by

the Hon'ble Apex Court as under:

           "(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?"

Vide judgment dated 13.01.2011, the Hon'ble Apex Court

replied to the said question as under:

"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 6 to 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

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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 be Government be held liable for their service conditions, absorption, regularization 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-holder 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."

(Emphasis supplied)

Consequently, the appeals of the State were allowed and

thereby the writ petitions of the petitioners stood dismissed.

It is the submission of the petitioners that after the said

decision, the Government appointed Administrators over all the

Government Aided Hostels and the administration of the said

Hostels was taken away from the NGOs running them. Thereafter

the State of Rajasthan, vide order dated 14.07.2011, directed the

hostel Superintendents of Government hostels to take over the

charge of the post on which the petitioners were working,

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meaning thereby that the services of the petitioners were

terminated and they were replaced by the Government Hostel

Superintendents.

Against the said action, the petitioners preferred a writ

petition being S.B. Civil Writ Petition No.8330/2014. The said writ

petition of the petitioners was disposed of vide order dated

27.11.2014 with the directions to the respondent-authorities to

decide the representation/legal notice of the petitioners within a

period of two months. The representation filed on 17.09.2014 by

the petitioners was rejected vide order dated 15.12.2015 on the

premise that because of the insufficiency of the infrastructure and

facilities in the aided hostels, the recommendation of the aided

hostels has been suspended vide Departmental Order No.46320

dated 20.07.2014. Meaning thereby, all the aided hostels

themselves were closed.

Against the order dated 15.12.2015, whereby the

representation of the petitioners was rejected, the present petition

has been preferred.

In the present writ petition, it has been submitted that the

petitioners had been appointed by the Government authorities and

therefore were the Government employees only. It has also been

submitted that though the petitioners were employees of the

Government Department but under mistake, they filed the writ

petition alongwith employees of the aided hostels earlier which

went up to the Hon'ble Apex Court and were decided in favour of

the State. The complete petition has been based on one sole

ground that the petitioners have been appointed by the Social

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Welfare Department of the State and therefore were the

Government Employees and the said fact was not considered by

the Hon'ble Apex Court. It has further been submitted that even

if the judgment of the Hon'ble Apex Court is kept into

consideration, the said provided that the relief of regularisation or

parity in pay as prayed by the petitioners was not maintainable

but the same did not direct for termination of the services of the

petitioners. Learned counsel further submitted that once the aided

hostels were taken over by the Government, the employees

working thereunder automatically became employees of the State

Government and were thus entitled not only for continuance in

services but also for regularisation of their services. In support of

the said contention, learned counsel for the petitioners relied upon

the judgment passed by Hon'ble Supreme Court in Andhra

University vs. M. Sivaram & Ors. reported in 1994 Supp (3)

SCC 750 and the judgment passed by the Division Bench of this

Court in D.B. Civil Appeal (Writ) No.331/2010; State of

Rajasthan and Anr. vs. Prof. Kishan Gopal and Ors.

Per contra, counsel for the respondents submitted that

firstly, the appointments on the post of Additional Hostel

Superintendent were made by the Aided Voluntary

Organization/Society only and later on, the said post was even

abolished vide order dated 19.10.1985, that is much prior to the

appointment of the petitioners. Therefore, the appointment itself

of the petitioners was without competence. Secondly, the

petitioners were working with the aided hostels which were run

and controlled by the NGOs and the services of the said

employees were governed by the Government Aided Hostel

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Control Rules, 1982 ('the Rules of 1982'). As per the Rules of

1982, appointments on the post of Additional Hostel

Superintendents were to be made by the aided

organisation/society. Moreover, the post of Part time Hostel

Superintendent was even abolished vide order dated 19.10.1985.

The petitioners were never appointed on any sanctioned posts and

therefore were not entitled to any relief of regularization.

Moresoever, after the judgment of the Hon'ble Apex Court

passed in Daya Lal's case (supra) wherein, the present

petitioners too were a party and wherein it has specifically been

held by the Hon'ble Apex Court that the persons employed in

aided hostels were not entitled for relief of regularization or the

parity in pay, the present writ petition for the same reliefs cannot

be held to be maintainable before this Court.

Learned counsel further submitted that after closing down of

all the Aided Hostels, even otherwise no ground of continuance in

services remains with the present petitioners.

Heard learned counsel for the parties and perused the

material available on record.

In the judgment as passed by the Hon'ble Apex Court as

reproduced in para 1, it has specifically been held that the persons

employed by the Aided Hostels could not be termed as the

persons employeed by the State Government. It was further

held that the Government could not be held liable for the

service conditions, absorption, regularisation or even

salary of the employees of private hostels.

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In the opinion of this Court, once the Hon'ble Apex Court has

held that the State Government cannot be held liable for the

salary or absorption of the employees of private hostels and that

too, in petitions wherein the present petitioners were also a party,

this Court cannot now, in the present writ petition re-appreciate

the issue and cannot hold contrary to the same. So far as the

continuance of the services of the petitioners is concerned, their

services were under the control and governance of the respective

Aided organization/society which was running the concerned

hostel and was receiving the financial aid from the Government.

Providing grant/aid to any organisation/society is the discretion of

the State Government and moreover the organisation/society

receiving the said aid is not before this Court to challenge the

order of stopping of the aid or closing down the hostel. Once the

aided hostels have been closed down, the petitioners cannot claim

any right against the State Government for any relief more so in

light of the fact that the Hon'ble Apex Court has already ruled

against them.

So far as the ground raised by the learned counsel for the

petitioners regarding taking over of the aided hostels by the State

Government is concerned, no such document to substantiate the

said fact has been placed on record. There is nothing on record to

show that the aided hostels had subsequently been taken over

and run by the State Authorities. The specific contention of the

State is that all the aided hostels have been closed down and

there is no counter on behalf of the petitioners to the said

submission. In absence of any document to prove the fact of

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taking over the hostels by the Government, the judgments as

relied upon by counsel for the petitioners would be of no avail as

they lay down the proposition as to what would be the status of

the employees after an organisation/private body is taken over by

the Government. The ratio would definitely not apply to the

controversy in hand.

In view of above observations and in view of the judgment of

the Hon'ble Apex Court passed in Daya Lal's case (supra), the

present writ petition being devoid of merit, is hereby dismissed.

All the pending applications also stand dismissed.

(REKHA BORANA),J Ashutosh

40-Vij/-

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