- (1.) IN this writ petition, while seeking the reliefs for regularisation and grant of regular pay scale, the petitioner submits that he is working on the post of Cook / Class IV Employee on daily wages in the hostel of Social Welfare Department at Chhoti Khatu since 01.07.2002; that he was earlier paid the wages at the rate of Rs.600/- per month until the month of December 2006 and is being paid a sum of Rs.1,898/- per month with effect from 01.01.2007. The petitioner has averred that he has been performing the job pertaining to a Class IV Employee in the hostel including cooking the meals and cleaning the building etc.; and despite more than five years of continuous and satisfactory service, he has neither been granted the semi permanent status nor the minimum of regular pay scale whereas many other employees similarly circumstanced have been regularised and granted all the benefits pertaining to the regular Class IV Employee. The petitioner has further averred that he served upon the authorities a notice through counsel stating his grievances and seeking the requisite relief but in vain.
(2.) ON the averments and assertions aforesaid, it is contended on behalf of the petitioner that he is entitled to be regularised in the service and to be paid in the minimum pay scale of Class IV Employee. An order dated 28.03.2011 as passed in CWP No.2892/2007: Kamal Kumar Rao Vs. The Secretary, Social Justice & Empowerment Department & Ors., has been referred wherein this Court directed consideration of the candidature of the petitioner of that writ petition for regularisation as per the provisions contained in Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1999. Per contra, it is submitted on behalf of the respondents that the petitioner was never appointed by any authority of the Department and, in fact, he was retained by the Mess Committee of the students of the hostel. While denying that the petitioner was discharging the duties of Class IV Employee, the respondents assert that the petitioner, being a part time employee retained by the Mess Committee, has no right to seek regularisation. It is also submitted that the regularisation of some of the part time Cooks/Chowkidars was taken up by the respondents in accordance with the scheme framed by the Government but the petitioner, not falling under the scheme, cannot be regularised. The decision of the Hon'ble Supreme Court in the case of State of Rajasthan & Ors. Vs. Daya Lal and Ors.: (2011) 2 SCC 429 has been referred. After having given a thoughtful consideration to the entire matter, this Court is unable to find any legal right in the petitioner for issuance of any mandamus for regularisation or regular pay scale. The documents collectively placed on record as Annexure-1 with the writ petition appear to be the certificates issued by the Secretary of the Mess Committee of the Government Hostel at Chhoti Khathu, Tehsil Deedwana, District Nagaur. What could be made out, at the most, from such certificates is that the petitioner has been working as a cook since the month of July 2002. However, it is difficult to find if the petitioner was engaged by the Department concerned against any sanctioned post. In the case of Daya Lal (supra), while applying the principles in the Constitution Bench decision in the case of Uma Devi: (2006) 4 SCC 1, the Hon'ble Supreme Court has reiterated several of the well settled principles in the following:- "(i) The 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 the 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 a 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 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." In relation to the part-time cooks/chowkidars in the respondent department, the Hon'ble Supreme Court has found that earlier the High Court issued directions with reference to the decision in Anshkalin Samaj Kalyan Sangh (CWP No.3453/1994: decided on 26.05.1995) but the same was no longer good law in view of the decision in Uma Devi (supra). The Hon'ble Supreme Court further observed that if at all there was a one-time scheme for regularisation of those who were in service prior to 01.01.1995, there cannot be successive directions for scheme after scheme for regularisation of irregular/part time appointments.
(3.) IN view of the law declared by the Hon'ble Supreme Court in Daya Lal (supra), the decision in Kamal Kumar Rao (supra) is of no help to the petitioner. Noticeable further it is that the petitioner of the said writ petition had been in employment since 21.05.1992 and was continuing as such until the year 2006. The present petitioner, as noticed, had been working since the year 2002 and appears to have been engaged by the Mess Committee for the work of the cook. There appears neither any legal right nor any equity in favour of the petitioner for a relief against respondent-department of regularisation or regular pay scale. IN view of the above, the petition fails and is, therefore, dismissed.;