Gujarat High Court
Ghelabhai Motibhai Bhangi vs Director Of Animal Husbandary on 6 May, 2022
C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7506 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GHELABHAI MOTIBHAI BHANGI
Versus
DIRECTOR OF ANIMAL HUSBANDARY & 2 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MR SOAHAM JOSHI AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 06/05/2022
ORAL JUDGMENT
By the present Special Civil Application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"16(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorary or other appropriate writ, order or direction, declaring the impugned order of termination to the petitioner and not converting the petitioner into full time employment and further denying absorption of petitioner as full time employee, as illegal, unjust, arbitrary and in violation of Art 14 & 16 of the Constitution of India and be pleased to quash and set aside the Page 1 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 same and direct respondents to treat the petitioner in service for all purposes and convert him into full time employment from retrospective date and grant all consequential benefits.
(B) Be pleased to declare that petitioner is entitled to get absorption as full time employee and declare the decision of respondents to terminate the petitioner as unjust, arbitrary, illegal, non-application of mind and be pleased to quash and set aside the same and direct respondents to treat the petitioner in continuous service for all purpose.
(C) Pending admission and final disposal of this petition be pleased to restrain the respondents from terminating and/or discontinuing the services of petitioner and grant him all consequential benefits."
2. The brief facts leading to the filing of the present writ petition are that, the mother of the petitioner was serving with the respondent No.2 herein as a Sweeper against a vacant post. That due to age and being medically unfit, she was discharged from service and in her place, on compassionate ground, the petitioner came to be employed as a Sweeper in the year 1980. The petitioner, since then, is working with the respondents No.1 and 2 continuously. The Dy. Director, Cattle Breeding Centre, Tharad issued a certificate certifying that the petitioner is a regular part-time worker since 1.6.1989 and before that also, he was in service and that he was rendering satisfactory services.
2.1 That the petitioner, at the relevant time, was being paid Rs.5/- per day and at the time of filing of the present writ petition, he was being paid monthly salary of Rs.675/- for full time sweeping the office and surrounding areas with working time of 5 hours a day. The petitioner is the only Sweeper in the office of the respondent No.1 and has to maintain the cleanliness of the whole premises. It is alleged that though it was a full time job, the petitioner was employed under the guise of part-time employee and was exploited and paid only part-time salary.
Page 2 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 2.2 It is alleged that, all of sudden, on 5.4.2006, the
respondent No.2 issued an order terminating the services of the petitioner with immediate effect as per the orders issued by the Finance Department of the State Government. It is also alleged that during the tenure when the petitioner was working as a part-time Sweeper, the State Government had issued an order for conversion of the part-time employees into full time employment, but the petitioner was singled out and discriminated.
2.3 Aggrieved by the termination order, the petitioner herein has preferred the present writ petition praying for quashing and setting aside the termination order and seeking reinstatement in service and to grant him full time employment with retrospective effect with all consequential benefits.
3. The present writ petition came up for hearing on 7.4.2006 when this Court was pleased to issue notice to the respondents. By order dated 12.4.2006, the petitioner was granted ad-interim relief as prayed for.
3.1 That by affidavit-in-reply filed by the respective respondents, the writ petition came to be opposed and it was submitted that the petitioner was not entitled to any interim relief or any final relief as prayed for.
3.2 By order dated 20.6.2006, the ad-interim relief granted to the petitioner herein came to be confirmed till the disposal of the present writ petition.
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4. Mr. Pathak, learned counsel appearing on behalf of the petitioner, would submit that the petitioner was working as a Sweeper with the respondents No.1 and 2 Department since the year 1980 when he was appointed on compassionate ground after his mother was unable to discharge her duties and was declared medically unfit. He has further submitted that though the petitioner was doing full time work, but under the guise of part-time employee, the petitioner was exploited for years together and at present, he is only paid Rs.625/- as monthly salary as payable to the part-time employee and that such exercise of powers on the part of the respondents is ex-facie unjust, illegal and in violation of Articles 14 and 16 of the Constitution of India and also amounts to unfair labour practice. He further submitted that all of sudden on 5.4.2006, the respondent No.2 has issued an order terminating the services of the petitioner with immediate effect in terms of the order issued by the Finance Department of the State Government. He submits that the said order of termination is arbitrary and in flagrant violation of the mandatory provisions of the Industrial Disputes Act, 1947 ["ID Act" for short] and therefore, the same is required to be quashed and set aside. He has further submitted that while the petitioner was in service with the respondents, the State Government had issued orders for conversion of part-time employees into full time employment, but the said benefit was never extended to the petitioner who was entitled for it and instead, he was terminated only with the intention of depriving him all the benefits of the status of the permanent employee of the department even though he was the only Sweeper in the office of the respondent No.2. This action of the respondents is a Page 4 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 gross case of unfair labour practice and in violation of Rule 2(r)
(a) read with Section 10 of the ID Act, 1947. It has been further submitted that in similar circumstances, in case of a part-time employee working under the State Government, who had approached the High Court, this Court was pleased to pass necessary orders directing the respondents to take the petitioner back in service and to convert her into full time employment and grant all consequential benefits. A copy of the order of the Division Bench passed in Special Civil Application No.346 of 2004 [Annexure-C to the petition] is also relied upon.
4.1 Learned counsel Mr. Pathak for the petitioner has also relied on the judgment of this Court rendered in Special Civil Application No.4074 of 2005 on 25.11.2016 by the Coordinate Bench. He relies on the observations made in para-9 of the said judgment and submits that the petitioner being a similarly placed person and being discriminated, he was also entitled to the benefits of Government Resolution and common judgment and order dated 30.1.1997 rendered in Special Civil Application No.4549 of 1996.
4.2 Mr. Pathak, learned counsel for the petitioner, has also relied on the decision of this Court in case of Jadav Nikeshkumar Mafatlal v. State of Gujarat & Ors. [2007 (1) GLH 88] wherein it has been held that the case of the persons who have been in service for more than 10 years against the duly sanctioned vacant posts are on a different footing and they are required to be considered on different basis in light of the observations made in paragraph-53 of the judgment of the Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1] Page 5 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 wherein it has been held that the State Government and their instrumentalities should take steps to regularize, as a one-time measure, the services of such irregularly appointed employees who have worked for 10 years or more in duly sanctioned pots.
4.3 He would submit that in the said facts and circumstances of the case, the prayers prayed for by the petitioner be allowed and the termination order be quashed and set aside and the petitioner be granted full time employment with the respondents.
5. Per contra, learned AGP appearing for the respondents has submitted that the petitioner was appointed as a temporary daily wager on ad-hoc basis. No appointment order has been issued and his appointment is not as per the recruitment rules also. It was submitted that since he was not appointed as per any rules, therefore, his services could not be regularized and the termination order is just, proper and in accordance with law. It is further submitted that the case of the petitioner was considered at the highest levels for regularization, but from the facts, it is revealed that since the petitioner had not passed the 4th grade examination, which was the minimum eligibility criteria for the Class IV employee, he is not considered eligible for the said post. It is further submitted that the G.R. dated 1.5.2007 which prescribes the conditions to be fulfilled for the appointment in Class IV posts is also not met by the present petitioner herein. It is lastly submitted that in view of the directions passed by this Court in order dated 24.10.2017, the working hours of the petitioner have been increased from 3 to 5 hours; he has also been granted fixed remuneration as per the G.R. dated 6.9.2014 along with the allowances permissible Page 6 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 thereunder. The petitioner has also been communicated of the same. In the premise, it was submitted by the learned AGP that the writ petition has no merits and the same be dismissed.
6. Heard learned counsel for the parties and perused the documents on record.
7. It is not in dispute that the petitioner is working as a part- time Sweeper with the respondents since 1.6.1989 and was also rendering his services prior to the said date as is evident from the certificate dated 18.1.1994 issued by the Dy. Director, Animal Husbandry (Annexure-A to the petition). The petitioner herein claims that he was appointed in place of his mother since 1980 on compassionate ground since she was declared medically unfit and therefore, on the date of filing of the present writ petition, he had already put-in more than 25 years of service as a part-time employee with the respondents. It is further revealed that the State Government vide G.R. dated 26.10.1980 was pleased to issue a direction to all the heads of the department with respect to regularizing the prevailing arrangement of part- time employees getting accumulated pay for converting the said posts into regular posts. The conditions stipulated in the said G.R. was that when the part-time employee continues upto 3 years in service, then the head of the department, as per the recruitment rules and procedure of the permanent posts becoming available under his control, should make endeavour to appoint such part time employee on such available permanent posts. The said G.R. is also annexed to the present writ petition as Annexure - R/1.
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8. This Court on 12.4.2017 was pleased to pass the following order in the present matter:-
"The petitioner was employed as part-time Sweeper since 1980 in place of her grandmother, who was declared medically unfit. Since then, he has continuously discharging his duties. The respondents decided to relieve him from the services by order dated 03.04.2006. The said order is stayed by this Court vide order dated 12.04.2006. Subsequently, the said interim order is confirmed till the final disposal of this present writ petition vide order dated 20.06.2006. The petitioner was paid monthly salary of Rs.675/- as part-time Sweeper. It has been pointed out that there is a Government Resolution which provides that such part-time employees are required to be absorbed against regular vacancy of Class IV. However, till date, no such order is passed by the respondents. On the contrary, by order dated 03.04.2006, the respondents decided to relieve the petitioner from part-time employee. The said action of the respondents is put on hold by way of interim order passed by this Court. The said interim order was confirmed till final disposal of the petition by order dated 20.06.2006. The said order is not challenged by the respondents by filing any LPA. The petitioner, who is serving as part time Sweeper since last more than 30 years, deserves to be given status of a permanent employee in light of the Government Resolution of 1980. The Responsible Officer of the respondent no.1 shall personally remain present before this Court on 13.04.2017.
List again on 13.04.2017."
8.1 Thereafter, on 13.4.2017, this Court passed the further order as follows:-
"1. It is really very unfortunate that in the land of Mahatma Gandhi and Sardar Patel, the petitioner who is "Harijan" and coming from lower strata of the society and rendering service as part-time Sweeper since 01.06.1989 is still struggling for his right.
2. As certified by the Deputy Director Animal Husbandry vide Certificate dated 18.01.1994 Annexure-A, the petitioner is working as part-time sweeper since 01.06.1989, however, he is not given benefit of the Government Resolution dated 26.12.1980 which clearly provides that the part-time Sweeper on completion of three years of service shall be absorbed against the clear vacancy on the establishment. On completion of three years i.e. in the year 1992, the petitioner became eligible for the absorption/appointment against vacancy of Class-IV post. The fact regarding appointment as part-time sweeper since 01.06.1989 is not disputed by the respondent-authorities.
3. Under the circumstances, the petitioner became eligible for appointment against clear vacancy of Class-IV on 01.06.1992. The Page 8 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 respondent-authorities were directed to submit details about the Class-IV sanctioned post on the establishment from 1992 onwards, but till date, no such particulars have been furnished before this Court. However, the learned Assistant Government Pleader, upon instructions received from the officers who have come to assist in the case, submits that unfortunately due to oversight, the petitioner's case could not be considered as and when it became due for appointment though the Government Resolution of 26.12.1980 was in force at the relevant point of time. It is submitted that in the year 1995, the said resolution was kept in abeyance, but prior to that, when the petitioner became eligible on completion of three years, it was very much in force. Now, it has been assured by the learned Assistant Government Pleader upon instructions from the responsible Officer who is present before the Court that the petitioner will be absorbed and given appointment in light of the Government Resolution dated 26.12.1980 at the earliest and for that purpose, sincere endeavour will be made by the respondent- authorities to issue necessary order at the earliest. The learned Assistant Government Pleader submits that tomorrow i.e. on 14.04.2017 is a holiday following weekend, and therefore, they need at-least week's time to complete the formalities for issuance of necessary orders.
4. It is pertinent to note that tomorrow i.e. 14.04.2017 is celebrated as Dr.Baba Saheb Ambedkar's Birthday and therefore, looking to the facts and circumstances of the case, it is expected from the officers of the respondent-authorities that they shall work during holidays, if required for the purpose of completing formalities for issuance of necessary orders.
5. This Court is of the view that real tribute can be given to Dr.Baba Saheb Ambedkar by working for such cause and not only by garlanding the statue. Therefore, it is expected from the respondent-authorities that they will work with all possible promptness to give legitimate dues to the poor "Harijan" part-time employee at the earliest. The cause projected in this application is such that promptness on the part of the respondent authorities is required to be shown as much delay has been caused in discharge of their duties in implementation of the Government Policy enumerated in the Government Resolution dated 26.12.1980. The respondent-State Authorities are directed to produce copy of the order passed in favour of the petitioner on 19.04.2017 failing which the Director, Animal Husbandry shall remain personally present before this Court with explanation as to why such order could not be issued despite specific directions of this Court.
List again on 19.04.2017."
8.2 Further, on 4.5.2017, this Court was pleased to pass the following order:-
Page 9 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 "1. Ms.Asmita Patel, learned Assistant Government Pleader appearing for the respondent-State, upon instructions received from the concerned department, stated that the matter is under active consideration of the respondent-State Government at the highest level, but certain queries were raised by the Finance Department of the State Government, and therefore, further persuasion is required to be made by the Administrative Department to the Finance Department. It is also submitted that the Finance Department has expressed concern about the huge financial liability likely to increase on account of such decision as about 6000 to 7000 such part-time employees are working under various departments in the State Government.
2. The worry expressed by the Finance Department of the State Government appears to be misplaced because the case of the petitioner deserves consideration between the period from 1992 to 1995. The subsequent Government Resolution came to be issued in the year 1995 by the respondent-State Government, whereby earlier Government Resolution dated 16.12.1980 was kept in abeyance. The case of the petitioner ought to have been considered by the respondent-State Government at the relevant point of time, meaning thereby, between the period from 1992 to 1995, but unfortunately, the respondent-State Government has failed to consider the case of the petitioner during the aforesaid period.
3. Under the circumstances, the case of the petitioner deserves consideration as a special case for the extension of the benefits under the Government Resolution dated 26.12.1980 which was in force when the petitioner became eligible to get the benefits on completion of three years services as a part-time employee. Moreover, the learned advocate for the petitioner, upon instructions, has made it clear that the petitioner will not claim any back-wages/ arrears if the petitioner will be absorbed against the vacancy. It was specifically conveyed to the learned Assistant Government Pleader/ Government Pleader. The stand taken by the poor petitioner is very reasonable and it will not create any financial burden upon the respondent-State Government, but the petitioner is required to be given effect of appointment from the deemed date when he became eligible for absorption in light of the Government Resolution dated 26.12.1980 so that he can get the pensionary benefits at the end of his service.
4. The concerned Administrative Department shall take up this matter with the Finance Department and impress upon the Finance Department to reconsider the stand which is taken on file by the Finance Department. The Finance Department of the State Government shall reconsider the proposal/note that may be placed by the concerned Administrative Department in light of the observations made hereinabove failing which the concerned Deputy Secretary of the Finance Department shall remain present before this Court on 07.06.2017.
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5. The learned advocate for the petitioner as well as learned Assistant Government Pleader appearing for the respondent-State jointly requested that since this Court has partly heard this case and invested so much time, this matter may be treated as part heard.
6. In view of the above submissions advanced by the learned advocates for the parties, this matter is treated as part heard.
7. List again on 07.06.2017. 8. Copy of this order be made available to the learned Assistant Government Pleader for the respondent-State for taking further appropriate steps at the end of the concerned Administrative Department."
8.3 On 6.7.2017, this Court passed further following order:-
"1. Learned Assistant Government Pleader Ms. Asmita Patel, under the instructions, states that it is not possible for the respondents to consider the case of the petitioner as a special case for extending all the benefits under the Government Resolution dated 26.12.1980 because the petitioner is not possessing or fulfilling the requisite criteria for being appointed as Class IV employee on regular establishment. She has placed on record the order passed by the Joint Secretary, Agriculture Cooperation and Farmers Welfare Department, whereby it is decided by the State Government in consultation with the Finance Department that it is not possible to consider the case of the petitioner for absorption by giving appointment as a Class IV employee, though the petitioner has expressed in clear term that he will not claim any back-wages.
2. It is pertinent to note that the Government of India has introduced a mission namely "Swachh Bharat Abhiyan" and all respective State Governments of the country have also adopted and implemented the Scheme. The Government of India as well as the State Governments under the said Scheme is making its endeavour to achieve the object / goal for the clean India. All the Departments of the Government have been asked to keep their offices premises, Government buildings and other Semi Government Organizations in a neat and clean condition. It is submitted that for the purpose of achieving this goal, now the Government has introduced policy of outsourcing and started awarding contracts for this purpose to the private contractors. Now the Government is not in favour of taking work from the part-time or full time employee and no fresh recruitment / appointment is being done by the State Government for this purpose. It is informed by the learned AGP upon instructions that there may be around 6000 to 7000 such part-time employees working with the different Departments and in event of giving benefits to the petitioner, the State Government will have to incur huge financial liability by giving benefits to other similalry situated employees and at present, the State is not ready and willing to do Page 11 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 so.
3. In view of the above submissions, considering the length of service of the petitioner as part-time employee, the respondent - State Authorities may consider to pay the basic salary of Class-IV employee as fixed monthly remuneration keeping in mind the minimum wages payable under the law. While doing so, the respondent - State Authorities may increase working hours, if required for the purpose of maintaining cleaniness in the office premises of the respondent No.2. The respondent Authorities are directed to explore possibility to continue the petitioner on fixed remuneration as suggested hereinabove.
Copy of this order be handed over to the learned AGP for taking necessary steps at her end to expore the possibility as suggested hereinabove by this Court. List again on 03.08.2017."
9. That, thereafter, by order dated 30.10.2017, the respondents issued an office order increasing the working hours of the petitioner herein from 3 to 5 hours and granting him increased remuneration in terms of G.R. dated 6.9.2014. It is not in dispute that the petitioner is the only Sweeper in the office of the respondent No.2 and that he is the sole care taker with respect to the cleanliness of the complete office premises. It is further claimed by the petitioner that even though the office premises and buildings cover a big area and his duties are the same as a full time employee yet he has been given the status of a part-time employee only and his services are being exploited. It is seen that even if accepting that the petitioner was working with the respondents since 1.6.1989 till date, the petitioner has already put-in more than 32 years of services with the respondents on a fixed remuneration. This Court through its various orders has explored the possibility of granting the relief of regularization to the petitioner, however, the same has not been possible in view of the various Government Circulars and Resolutions placed on record by the respondents. However, the State Government has issued office order dated 30.10.2017 granting him remuneration and benefits under the G.R. dated Page 12 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 6.9.2014 of the Finance Department. It has also come on record in order dated 13.4.2017 passed by this Court that unfortunately, due to oversight, the petitioner's case could not be considered as and when he became due for regular appointment though the G.R. dated 26.12.1980 was in force at the relevant time. Admittedly, the petitioner was working as a part-time Sweeper from 1.6.1989 and on completion of 3 years i.e. in the year 1992, the petitioner became eligible for the absorption/appointment against vacancy of Class IV post. It was submitted that the said G.R. dated 26.12.1980 was kept in abeyance in the year 1995. Prior to that, the petitioner had become eligible on completion of 3 years since it was very much in force in the year 1992. The respondents now in their affidavit- in-reply dated 21.4.2017 have submitted that the G.R. dated 26.12.1980 of the Finance Department was kept in abeyance vide Circular dated 21.8.1995 and which was replaced vide Circular dated 7.1.2006. Further, the G.R. dated 23.8.1982 prescribes the eligibility criteria for selection through direct recruitment. It is stated that the candidate should not be less than 18 years of age and not more than 25 years of age and was required to have passed 4th grade examination for appointment to Class IV post. Since the petitioner herein had not passed his 4th grade examination, he could not be considered for regularization as he did not fulfill the eligibility criteria for selection vide G.R. dated 23.8.1982.
10. That this Court and Hon'ble Apex Court in a catena of decisions has held that the services of part-time employees cannot be regularized. The Hon'ble Apex Court in case of Secretary to Govt. Commercial Taxes & Registration Department, Page 13 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 Secretariat & Anr. v. Singamuthu [(2017) 4 SCC 113] has held as follows:-
"14. In a similar issue, concerning part-time sweepers, the State of Tamil Naduhas filed an appeal before this Court, and those appeals were allowed by this Court byjudgment dated 21.02.2014 in Secretary to Government, School Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014) 4 SCC 769. After referring to various judgments on this issue, in paras (5) to (7), this Court held as under:-
"5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra.
6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this Court held as under: (SCC p. 40, para 48) "48. ... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."
7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with the issue of regularisation of part-time employees and the Court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise."
15. In State of Rajasthan and Others Vs. Daya Lal and Others (2011) 2 SCC 429, this Court has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and thisCourt clearly laid down that part-time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle Page 14 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 of equal pay for equal work. Relevant excerpt from the said judgment is as under:
"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) 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 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 Page 15 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022 C/SCA/7506/2006 JUDGMENT DATED: 06/05/2022 employees. The right to claim a particular salary against the State must arise under a contract or under a statute. See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v.
Dayanand 2008 10 SCC 1." (emphasis added)
11. This Court finds that the petitioner has been rendering his services for the last more than 32 years as a part-time Sweeper with the respondent No.2. Having regard to the peculiar facts and circumstances of the present case, this Court is of the considered opinion that without laying down any law or precedent, the respondents are directed to continue the petitioner in service in terms of the order dated 30.10.2017 issued by the office of the Director, Animal Husbandry, granting him wages and other financial benefits in terms of the G.R. dated 6.10.2014 of the Finance Department, State of Gujarat.
With these observations and direction, the present writ petition is partly allowed. The termination order dated 5.4.2006 is quashed and set aside and the order dated 30.10.2017 is hereby confirmed. Rule is made absolute accordingly. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 16 of 16 Downloaded on : Fri May 06 21:09:53 IST 2022