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2025 DIGILAW 1156 (RAJ)

Indira v. State of Rajasthan

2025-04-23

SUDESH BANSAL

body2025
ORDER : SUDESH BANSAL, J. 1. By means of filing instant civil writ petition under Article 226 of the Constitution of India, petitioner is claiming regularisation of her services as Cook and for grant of regular pay-scale. In alternative, counsel for petitioner has prayed that petitioner is at least entitled to get minimum wages at the current rate of minimum wages payable to a skilled IV Class employee under the Minimum Wages Act, 1948 (as amended) (for short 'the Act of 1948'). 2. It has inter alia been pleaded and argued by and on behalf of petitioner that she was appointed as Cook by the Mess Committee w.e.f. 17.09.1999 and since then petitioner is discharging her duties as a full time Cook in the Government Hostel, run by the Government of Rajasthan and since the appointment of petitioner is against the sanctioned post of Cook, she is eligible for regularisation as also to get the regular pay-scale of the Cook/ IV Class employee. 3. Alternative submission of counsel for petitioner is that even if petitioner is not found eligible for regularisation and regular pay- scale, at least, she is entitled to get minimum wage for rendering service as full time Cook in the Government Hostel, run by the respondent-Department. 4. Counsel for petitioner, to buttress his contention and to support the case of petitioner has relied upon and referred final judgment dated 25.04.2017 passed by the Coordinate Bench in bunch of writ petitions, involving the identical nature of issue, lead case being Anokha Bai Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 372/2013 and other connected matters. In this case, the Coordinate Bench of this High Court, while relying upon the previous judgment delivered in case of Anshkalin Samaj Kalyan Sangh, Banswara Vs. The State of Rajasthan, WLR 1996 Raj. 291 , which was affirmed by the Apex Court in respect of issuing directions for grant of wages equivalent to minimum pay-scale to the Cook appointed by the Mess Committee and discharging their duties at the Government Hostel run by the Government of Rajasthan as also having relied upon the ratio decidendi expounded by the Hon'ble Apex Court in case of State of Punjab Vs. Jagjit Singh & Ors., AIR 2016 SC 5176 , held and observed as under: "These writ petitions have been filed by those, who are working on the posts of Cook and Watchman for last many years in the mess of the hostels meant for scheduled caste and scheduled tribes students. The petitioners are not working in the aided hostels but in the hostels run by government. They are paid wages as decided by the Mess Committee. Initially they were engaged directly but now through placement agencies for the reasons best known to the State Government. The involvement of the placement agencies is at the cost of public exchequer. It is moreso when even after involvement of placement agencies, the Department remains the principal employer thus liable for all consequences. This Court had issued direction to the respondents to find out as to why they are incurring amount on placement agencies but no satisfactory reply has been given. The prayer for regularisation of services has not been pressed thus the issue aforesaid is not required to be considered. The only prayer is for equal pay for equal work. The Government has already taken a decision to pay at the rate of minimum wages. The aforesaid decision is appreciated. It shows that the State Government has also recognised long working of the petitioners. It is a fact that Cooks and Watchmen engaged similarly in the Police Department and Social Welfare Department before a cut off date are getting wages in the regular pay scale. They are working and discharging similar duties as are discharged by the petitioners. The denial of minimum of the pay scale is alleged to be in absence of sanctioned posts. The petitioners are working against the post shown in the Circular issued by the Government on 19th October, 2012 and earlier on 18th January, 1982. Circulars were issued to regulate the aided and government hostels run for scheduled caste and scheduled tribe students. As per the Circular dated 18th January, 1982, the posts have been identified and its strength is subject to students in the hostels. The petitioners were engaged when the Circular dated 18th January, 1982 was in operation and, accordingly, they are working against the post shown therein. The Circular even provides for strength. As per the Circular dated 18th January, 1982, the posts have been identified and its strength is subject to students in the hostels. The petitioners were engaged when the Circular dated 18th January, 1982 was in operation and, accordingly, they are working against the post shown therein. The Circular even provides for strength. Whether they are employees of the Government or of the Mess Committee has been decided by this Court in the case of Anshkalin Samaj Kalyan Sangh, Banswara (supra). The judgment has been upheld by the Apex Court. Para Nos. 23 to 26 of the judgment in the case of Anshkalin Samaj Kalyan Sangh, Banswara (supra) are quoted hereunder for ready reference : “23. It is therefore, clear that in the present case, from the facts alleged and the material placed on record if it can be concluded that the concerned employees alleged to have been engaged on part- time basis are in reality discharging full time duties, they are entitled to minimum of the pay-scale applicable to the Cooks and the Chowkidars in the employment of the State Government. Merely because they have been described as part-time employees, their employment could not be taken to be of part time employee. It cannot also be accepted that these employees are not entitled to equivalence in the matter of payment because they are not directly employed by the State but they are employed through the ‘Mess Committees’. A reading of the Rules1982 framed by the State Government as executive instructions (Annexure R-1 to the return) clearly show that the hostels are run by the State and even those hostels which are not run by the Sate are aided and effectively controlled by the State. The ‘Mess Committees’ of the hostel is not a arrangement employed of corporate entity or a distinct individuality. This is a Committee appointed under the Rules of 1982. The arrangement under which the ‘Mess Committee’ is supposed to manage the hostels is not even like an with an independent contractor moreover even a person through an independent Contractor can be taken to be an employee the principle who engaged the Contractor. In this case the employment is said to be through an independent Contractor can be taken to be an employee of the principle who engaged the Contractor. In this case the employment is said to be through an independent Contractor can be taken to be an employee of the principle who engaged the Contractor. In this case the employment is said to be through ‘Mess Committee’ which is nothing but a body appointed by the State itself to carry on day to day activity and to look-after daily choras of the hostel. In Paragraph- 5(Five) of these instructions, it has been provided that a Class IV employee will be appointed for each hostel and he will reside in the premise. In Paragraph- 6(Six) of these instructions, it has been provided that it shall be the duty of the Class IV employee to look-after the cleanliness and security of the hostel and the dining hall. It shall be his duty to fetch water and to discharge the duties of the office peon. In Paragraph-8(1) of the Instructions, it has been provided that the expenses on meals, snacks etc., shall be made by the ‘Mess Committee’ under the Rules and certain amount would be charged from each hostlers per month. In Paragraph-9(3), it has been reiterated that ‘Mess Committee’ shall arrange for the meals, snacks, electricity water etc., and shall be given fixed amount per hostler. In Paragraph-9(7) it has been provided that the departmental work would not be made available to the ‘Mess Committee’ but on the basis of the number of hostlers, Rs.250/- per Cook would be paid to the ‘Mess Committee’ as adhoc grant. In the same provision, it has been provided that on every 25 hostlers, on Cook would be engaged and grant of Rs.250/- per Cook would be made available. Obviously, this grant is by the State itself. Form the document R-1 itself, it is clear that the work of Chowkidar and Cook is a whole time work. The Chowkidar is supposed to discharge all the functions of the peon and has to remain twenty four hours on the premises of the hostel. His work therefore, cannot be said to be a part- time work. The rules even do not expect employment of a person who is not in the employment of an educational institution as a part-time Class IV servant or Chowkidar. His work therefore, cannot be said to be a part- time work. The rules even do not expect employment of a person who is not in the employment of an educational institution as a part-time Class IV servant or Chowkidar. In Rule 5(7), it has been provided that in hostels which are attached to the education institutions the Assistant Superintendent and Class IV employee would be appointed as a part time basis and would be paid conveyance allowance or Rs.75/- and Rs. 50/- P.M. respectively. It has also been provided that such part-time employees would be appointed form amongst employees of the educational concerned educational institutions alone. This clearly means that no fresh appointment on a fixed amount is to be made if the hostel is attached to an institute and for the independent hostels it has not been provided that part-time Class IV employees will be appointed. The very fact that such a Class IV employee has to be on the premises of twenty four hours and has to work as office peon of the hostel – office as well as to look after the cleanliness of the hostel shows that the job of the Class IV employees in the hostel is a full time job. 24. So far as the Cook is concerned, he has to prepare snacks and tea for the morning and evening, breakfast and has to prepare the lunch and dinner. One Cook is to be appointed on every 25 inmates of the hostel. 25. To prepare snacks and meal twice a day for 25 persons cannot be said to be a part-time job. It is clear that at the minimum he has to work one hour in the morning for preparation of snacks, then about three hours for cooking the lunch for 25 persons, then in the evening he has again to prepare snacks for 25 persons and work minimum period of one hour for that and then he has to prepare dinner for 25 persons in the night which may take three hours. This comes to about eight hours work spread over span of 15 hours in a day. This work cannot be said to be a part time work. Moreover what the Rule says is that the ‘Mess Committee’ shall be given a grant of Rs. 250/- per twenty five hostlers for meeting the expenses of the Cook. This comes to about eight hours work spread over span of 15 hours in a day. This work cannot be said to be a part time work. Moreover what the Rule says is that the ‘Mess Committee’ shall be given a grant of Rs. 250/- per twenty five hostlers for meeting the expenses of the Cook. It does not mean that the ‘Mess Committee’ or the Government is expected by the Rules to engage a Cook for Rs.250/- per month under the garb of part-time employment. The direction contained in Paragraph-9(7) of the Instructions is to the effect that the Cooks will be engaged on part-time basis for ten months in a year and would be paid accordingly is extremely arbitrary, unjust and improper. The executive power of the State cannot be used for issuing such exploitative instructions. 26. In the result, it is held in the circumstances of the case that the work of Class IV employee engaged in the hostel run by the Government or Government aided institutions, under the Rules of 1982 is full time work equivalent to the work of the Class IV employee of the State. Similarly, the work of the Cook in such hostels is a full time work equivalent to the work of any other Cook employed directly by the Government. All the Class IV employees/Chowkidars and Cooks employed in such hostels are therefore, entitled to pay equivalent to their counter parts serving in the Government. However, a direction for their regularisation cannot be given straightway.” The judgment aforesaid was considered by the Apex Court in the case of Dayalal (supra) where the prayer was for regularisation of service. It was not accepted by the Apex Court in the light of the subsequent judgment in the case of Uma Devi (supra) and other judgments. Therein, it was also held that Anshkalin Samaj Kalyan Sangh, Banswara (supra) is no more a good law to direct regularisation of service. The direction of the High Court was to frame a scheme for regularisation of the part time Cooks and Watchmen. The direction for regularisation of service was taken to be one time measure. The petitioners have not pressed this petition for regularisation of services but for equal pay for equal work. The direction of the High Court was to frame a scheme for regularisation of the part time Cooks and Watchmen. The direction for regularisation of service was taken to be one time measure. The petitioners have not pressed this petition for regularisation of services but for equal pay for equal work. The judgment in the case of Anshkalin Samaj Kalyan Sangh, Banswara (supra) cannot be applied for regularisation of service after the judgment in the case of Dayalal (supra). The judgment in the case of Anshkalin Samaj Kalyan Sangh, Banswara (supra) is, however, on many issues thus remaining part, other than for regularisation of service, would apply. The persons engaged in the mess of the hostels run by the government were held to be employees of the Government and not of the Mess Committee. The finding aforesaid has not been reversed by the Apex Court in the case of Dayalal (supra), rather, that was not the issue therein. Only one part pertaining to regularisation is held to be no longer good law thus petitioners have rightly not pressed the writ petitions to seek regularisation of their services. The post of cook has been identified in para No.7 of the Circular dated 18th January, 1982. The number of the post is subject to strength of the students. If the hostel is having 25 students, one post of cook has been sanctioned. Similarly, the strength up to 45 students gets 2 cooks and so on. In view of above, it cannot be said that petitioners are not working against the sanctioned post. It is provided under the scheme itself and, otherwise, without a sanctioned post, a person cannot be continued for years together and in a present case, for last 15 years or so. The respondent department is said to be a welfare State but seems to be acting otherwise. The Apex Court summarised all the judgments on the issue of equal pay for equal work recently in the case of Jagjit Singh & Ors. Para 57 is quoted hereunder for ready reference : “57. The respondent department is said to be a welfare State but seems to be acting otherwise. The Apex Court summarised all the judgments on the issue of equal pay for equal work recently in the case of Jagjit Singh & Ors. Para 57 is quoted hereunder for ready reference : “57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned Counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. To become entitle for minimum of the pay scale, one has to show required qualification and working against the sanctioned post. The respondents have not alleged that the petitioners are not possessing required qualification. The only excuse taken by them is of sanctioned posts under the Rules. The reply to the writ petitions does not refer that petitioners are not working against the sanctioned posts under the Rules. It, however, shows that their engagement is on part time basis without specifying working hours. It is stated that petitioners are working for more than 8 hours in a day because they have to cook in the morning, day time and in the evening and all these issues have already been settled by this Court in the case of Anshkalin Samaj Kalyan Sangh, Banswara (supra) , as upheld by the Apex Court. The issue about their full time working is not open for debate by the State Government. Learned Additional Advocate General further submitted that sanction of the posts is under the Scheme and not under the Service Rules thus judgment in the case of Jagjit Singh (supra) would not apply. The argument aforesaid cannot be accepted. The judgment in the case of Jagjit Singh (supra) allows equal pay for equal work if one is working against the sanctioned post. The sanction of post is an administrative decision. If the plea taken by the respondents is accepted then the Government can very well evolve the mechanism to avoid implementation of the judgment in the case of Jagjit Singh (supra). It is by sanctioning all the posts by framing scheme so as to state that posts are not sanctioned under the Service Rules but under the Scheme. If the plea taken by the respondents is accepted then the Government can very well evolve the mechanism to avoid implementation of the judgment in the case of Jagjit Singh (supra). It is by sanctioning all the posts by framing scheme so as to state that posts are not sanctioned under the Service Rules but under the Scheme. It is quite surprising and shocking that though the petitioners are working for last 10 to 15 years yet they have to approach this Court to get minimum wages provided under the Act of 1948. It is now provided when an order was passed by this Court to find out as to under what provision, the placement agencies have been engaged to employ the persons like the petitioners. Whether they are paid at the rate of minimum wages. It is with the pursuation of the Additional Advocate General Mr.GS Gill and Mr.Anurag Sharma that the State Government agree to pay at least minimum wages provided under the Act of 1948 otherwise the petitioners were not even getting wages as per the statutory provisions. 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 the pay scale for the post of Cook and Watchman while denying the benefit of regularisation sought by them, as otherwise not pressed by the petitioners. 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. The compliance of this judgment would be made by the respondents within a period of four months from the date of receipt of copy of this order." 5. During course of argument, counsel for petitioner drew attention of this Court to the order dated 27.12.2004 passed by the Director, Social Welfare Department, Jaipur, denying regularisation of services of petitioner for the reason that as per the regularisation scheme of State Government, Cook/Chowkidar appointed in the Government Hostel, prior to 01.05.1995 have only been regularised, since the appointment of petitioner is w.e.f. 17.09.1999, her case is not covered in the scheme for regularisation. 6. 6. Counsel for petitioner, having instructions from the petitioner and in view of an admitted and undisputed fact that petitioner joined duties as Cook w.e.f. 17.09.1999 in the Government Hostel, does not press the prayer for regularisation, but requested to direct the respondents to grant minimum wages to the petitioner, payable to a Cook/IV Class employee at the current rate prescribed under the Act of 1948. 7. Having acceded the limited prayer of counsel for petitioner and taking into consideration the factual matrix of present case that petitioner is discharging her duties as full time cook against the substantive post in the Government Hostel run by the Government of Rajasthan since 17.09.1999, although she may not be entitled for regularisation, but she is at least entitled to get the wages at the rate of current minimum wage, payable to a regular appointee Cook/IV Class employee under the Act of 1948. The principle of 'equal pay for equal work' is squarely applicable to the case of petitioner. In this respect, the entitlement of petitioner also finds support of the judgment of Hon'ble Supreme Court delivered in case of Jagjit Singh (supra) as also of final judgment dated 25.04.2017 delivered in case of Anokha Bai (supra) passed by the Coordinate Bench of this High Court. 8. As a final result, the prayer of petitioner for regularisation of her services on the post of Cook, is dismissed as not press, however, petitioner is held entitled to get wages at the rate of current minimum wages, payable to a full time appointee Cook/IV Class employee, as prescribed under the Act of 1948. 9. Respondents are directed to pay the minimum wages to the petitioner, from the date of judgment i.e. from the month of May, 2025 onwards regularly, for the remaining period of service of petitioner. 10. All pending application(s), if any, stand(s) disposed of.