- (1.) WHILE disposing of the writ petition exparte against the respondents, a coordinate bench of this Court on 27.04.2011 issued following directions: - "In this view of the mater and in the interest of justice, this writ petition is disposed of with the direction to the respondents to consider the case of the petitioner for regularization in accordance with the directions issued by the Hon'ble Supreme Court in case of Secretary, State of Karnataka Vs. Uma Devi and Ors. reported in 2006 SCC (4) page 1, in which, a direction has been given for considering the candidature of those employees who are working on daily rate basis or on temporary basis from ten years, so also, considered the amendment issued by the State of Rajasthan in the Rajasthan Class IVth Service Rules, 1999 for considering the candidature of the candidates for regularization by the Screening Committee. Further, it is directed that if it is found that petitioner is entitled for regularization after completion of ten years of service S.B. Civil Contempt Petition No.430/2011 in S.B. Civil Writ Petition No.3635/2011 Tikam Chand Vs. Aditi Mehta and Anr. Order dt: 24/01/2013 then he may be granted all benefits as provided under the Rules."
(2.) MR . D.R. Kawadia, learned counsel for the respondents submits that the case of the petitioner for regularization was considered vide order dated 19.12.2011, in which it has been stated that since there was no sanctioned post of Cook available on 01.04.2006 when the petitioner completed ten years of service as part-time Cook, he could not be regularized as such in the service. The respondents have further urged that the services of the petitioner in the same manner as he was serving ever since 01.12.1996. Learned counsel for the respondents, Mr. D.R. Kawadia, also relied upon a later decision of Hon'ble Supreme Court in the case of State of Rajasthan & Ors. Vs. Daya Lal & Ors. reported in (2011) 2 SCC 429, in which, the Apex Court has considered the judgment rendered in the case of Secretary, State of Karnataka Vs. Uma Devi & Ors. reported in 2006 SCC (4) 1 and held as under: - "20. The following are well-settled principles relating to regularisation and parity in pay: . (i) The High Court, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption, or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular appointment 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 S.B. Civil Contempt Petition No.430/2011 in S.B. Civil Writ Petition No.3635/2011 Tikam Chand Vs. Aditi Mehta and Anr. Order dt: 24/01/2013 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 regularised, back door entires, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (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 or part-time temporary employees. S.B. Civil Contempt Petition No.430/2011 in S.B. Civil Writ Petition No.3635/2011 Tikam Chand Vs. Aditi Mehta and Anr. Order dt: 24/01/2013 (v) Part-time temporary employees in a 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. State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753, M. Raja v. CEERI Educational Society, (2006) 12 SCC 636 : (2007) 2 SCC (L&S) 334; S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897; Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand, (2007) 15 SCC 680 : (2010) 1 SCC (L&S) 742; Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SC (L&S) 9453, applied.
(3.) IN view of this, it cannot be said the directions to consider the case of the petitioner, straightway could result in the regularization of the petitioner. The direction was only to consider the case of the petitioner,which has been considered by the respondents vide order Annex.R/1 dated 19.12.2011. If the petitioner is not agreeable with this order, he could lay a proper challenge to the same by way of appropriate legal remedy and such challenge cannot be entertained, much-less decided, in the contempt jurisdiction in the present contempt petition.;