Allowed

Vikram Kumar Raigar S/O Shri Hanuman Sahay v. the State of Rajasthan

Rajasthan HC26 Sept 2023CW/13733/2020

Case brief

AI extract

What is this about?

The High Court decided an S.B. Civil Writ Petition seeking minimum wages for part-time employees. Rejecting the State's defense that 10 years of service was required, the court followed a coordinate bench and Supreme Court precedents to allow the claim and direct payment.

What did the court decide?

Orders denying minimum pay scale due to less than 10 years of service were quashed; respondents directed to grant minimum pay scale from the date of earlier writ petitions.

Vikram Kumar Raigar S/O Shri Hanuman Sahay… — Pension and Retirement Benefits | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 13733/2020

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Vikram Kumar Raigar S/o Shri Hanuman Sahay, Aged About 25 Years, R/o Dehra Moad, Tehsil Thanagaji, District Alwar, Presently Working As Part Time Employee Obc Hostel, Thanagaji, (Raj.)

¶4

Phool Kanwar W/o Shri Kailash Chand, R/o Itm Staff Colony Ke Picche, Bhawani Mandi, District Jhalwar, Presently Working As Part Time Employee, Girls Hostel, Bhawani Mandi, (Raj.)

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Kailash Chand S/o Shri Chhotu Singh, R/o Itm Staff Colony Ke Picche, Bhawani Mandi, District Jhalwar, Presently Working As Part Time Employee, Girls Hostel, Bhawani Mandi, (Raj.)

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----Petitioners

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Versus

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The State Of Rajasthan, Through Principal Secretary, Social Justice And Empowerment, Govt. Of Rajasthan, Govt. Secretariat, Jaipur.

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Director, Social Justice And Empowerment, Govt. Of Rajasthan, Near 22 Godam Bridge, Jaipur.

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District Officer/ Deputy Director, Social Justice And Empowerment, Govt. Of Rajasthan, Alwar.

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District Officer/ Deputy Director, Social Justice And Empowerment, Govt. Of Rajasthan, Jhalawar.

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----Respondents

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For Petitioner(s) : Mrs. Nidhi Sharma For Respondent(s) : Mr. Nalin G. Narain, AGC

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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26/09/2023

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Instant petition has been filed by the petitioners with

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the following prayer:

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(2 of 8)

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[CW-13733/2020]

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“i. By an appropriate writ, order or direction in the nature thereof the respondents may kindly be directed to allow to the continue to the petitioner to work on the post of Part Time Employee at their respective place of posting and also pay them remuneration as per minimum wages directly through concerned Govt. Head without involvement of the placement agency.

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ii. an appropriate, writ, order or direction the respondents be directed to grant the benefit of minimum pay scale to the post of Class IV employee. iii.Any other order which this Hon'ble Court deemed just and proper in the facts and circumstances of the case may be passed in favour of the petitioner.”

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Learned counsel for the petitioners submits that the matter pertains to grant of minimum wages. She further submits that the issue involved in this petition has already been decided by the Co-ordinate Bench of this Court while deciding a batch of writ petitions with the lead case of Kanhaiya Lal vs. State of Rajasthan (SB Civil Writ Petiton No.3595/2022). Counsel submits that instant petition be also disposed of with the same directions issued in the case of Kanhaiya Lal (supra).

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Per contra, learned counsel for the State respondents opposed the arguments raised by the counsel for the petitioner but he is not in position to controvert the submissions made by the counsel for the petitioner.

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Heard and considered the submissions made at the Bar and perused the material available on the record.

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The issue involved in this petition has already been set at rest in the case of Kanhaiya Lal (supra) with the following observations and directions:

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“It was submitted with reference to the order of the learned Single Judge in Hans Raj & Ors. vs.

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(3 of 8)

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[CW-13733/2020]

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State of Punjab & Ors. : CWPNo. 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.

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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 15years) and ultimately directed as under:

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"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.

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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."

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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.

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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 & Ors. : CWP No. 14796/2003 decided on

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(4 of 8)

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[CW-13733/2020]

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11/11/2011, which Full Bench was formed for resolving the conflicting decisions in Stateof 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.

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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:

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"(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:

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(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.

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(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 longperiod of time, an equitable right is created in such category of persons. Their

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(5 of 8)

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[CW-13733/2020]

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claim for regularization, if any, may have to be considered separately in terms of the legally permissible scheme.

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(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.

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"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:

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"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."

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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.

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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:

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(6 of 8)

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[CW-13733/2020]

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"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.

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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 3years; those who had completed more than 720 days of service - with effect from 1.4.1977; and those who had 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 16of the Constitution.

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[CW-13733/2020]

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(7 of 8)

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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."

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(emphasis supplied).

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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.

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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.

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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.

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In view of the above discussion, the petitions filed by the petitioners are allowed. 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) denying minimum of the pay scale to the petitioners only on account of their having worked for less than 10years are quashed and set aside.

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The respondents are directed to accord the benefit of minimum of the pay scale to the petitioners from the date their writ petitions filed in

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(8 of 8)

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[CW-13733/2020]

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earlier round of litigation came to be decided by this Court, as indicated hereinbefore.

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Needful be done by the respondents within a period of fourweeks from the date of this order.”

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Instant petition stands disposed of in the light of the observations made by the Co-ordinate Bench of this Court in the case of Kanhaiya Lal (supra).

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Stay application and all applications (pending, if any) also stand disposed of.

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The respondents are directed to accord the benefit of minimum pay scale to the petitioner with effect from the date of this order.

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It goes without saying that the respondents would do the needful within a period of three months from the date of receipt of certified copy of this order.

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(ANOOP KUMAR DHAND),J

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KuD/346

Vikram Kumar Raigar S/O Shri Hanuman Sahay v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Vikram Kumar Raigar S/O Shri Hanuman Sahay v. the State of Rajasthan

Case brief

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