BENCH AT JAIPUR v. State of Rajasthan through its Secretary, Social Welfare

Judgment

1. State of Rajasthan through its Secretary, Social Welfare Department, Government of Rajasthan, Secretariat, Jaipur.

2. The Secretary, Social Welfare Department, Government of Rajasthan, Secretariat, Jaipur.

3. The Project Director (PFA & M), Social Welfare Department, Government of Rajasthan, Jaipur.

4. The Principal, Government Residential School, Social Welfare Department, Atru District Baran. ----Respondents For Petitioner(s)

: Ms. Pragya Seth on behalf of Mr. Mahendra Shah, Senior Advocate For Respondent(s) : Mr. Amitosh Pareek, G.C. HON'BLE MR. JUSTICE ANAND SHARMA RESERVED ON PRONOUNCED ON Order :: ::

21.08.2025

29.08.2025

1. The petitioner has filed the instant writ petition with a prayer that granting consolidated salary instead of regular pay scale to the petitioner may be declared illegal and invalid, and directions may be given to the respondents to grant regular pay scale of Class-IV employee to the petitioner from the date of initial appointment, or from any other suitable date and to pay the salary of the petitioner accordingly in regular pay scale. The [2025:RJ-JP:33424] (2 of 13) [CW-8332/2002] petitioner has also prayed for granting benefit of regularization in service.

2. It has been contended that the petitioner is working as Chowkidar since 01.10.1998 against the sanctioned post in the respondent-Social Welfare Department, Government of Rajasthan at Maharana Pratap Government Sr. Secondary (Residential) School, Atru, District-Baran (Rajasthan). It was submitted that sanction for the aforesaid post was issued year wise for filling up the post under the category of Class-IV employees pursuant to service contract in accordance with directions of the State Government issued on 04.07.1998 & 10.08.1998.

3. It has been submitted that one order dated 14.07.1997 was issued by the Project Director (NRC), whereby different posts were created in the aforesaid residential school, Atru, Baran and post of Chowkidar was also sanctioned. Vide order dated

09.10.1998 they were directed to pay Rs.1800 as consolidated salary. It was further submitted that even thereafter, from time to time for the post earlier sanctioned in the aforesaid residential school, Atru, Baran, which was being run under Social Welfare Department of Government of Rajasthan, budgets were sanctioned and treating the petitioner as contractual employee, the respondents continued to pay consolidated salary.

4. Learned counsel appearing for the petitioner submits that petitioner was being paid meagre amount against his services, whereas he was required to perform duties for the whole day. He also submits that only on the pretext that the posts were sanctioned only on contractual basis and Budget was released [2025:RJ-JP:33424] (3 of 13) [CW-8332/2002] from year to year, the respondents exploited the petitioner by not granting him regular pay scale and benefit of regularization. Even, after rendering services for more than 27 years, the petitioner is still striving hard for getting regular pay scale, which should be equal to other regular employees of the Department. Such conduct of the respondents is exploitation of continuous services of the petitioner, which is not only arbitrary and illegal but is in violation of Articles 14 and 21 of the Constitution of India and also against the norms prescribed by Article 39(d) of the Constitution of India.

5. Learned counsel for the petitioner also submits that the petitioner has been working on the post of Chowkidar, which is a work of continuous and perennial nature, however, the State has acted in most arbitrary manner by granting sanction from year to year, which has caused serious prejudice and miscarriage of justice to the petitioner.

6. Learned counsel for the petitioner further adds that in the light of aforesaid circumstances, where even the Hon’ble Supreme Court in different judgments has directed the State Authorities for stopping such irregularities as well as for making Scheme in order to safeguard the rights of such persons, who have invested their entire life by rendering services to the State Government, yet despite issuance of notification dated 27.02.2009 after the judgment of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. reported in 2006 (4) SCC 1, till date, the petitioner has not been screened for the purpose of regularization on the pretext that the post of Chowkidar is not sanctioned by the [2025:RJ-JP:33424] (4 of 13) [CW-8332/2002] State Government to be filled up by way of regularization. Hence, a prayer has been made to direct the respondents to regularize the services of the petitioner and to direct them to pay regular pay scale.

7. Per contra, learned counsel appearing for the respondents seriously opposed the writ petition and submitted that no process of recruitment for selection was followed prior to engaging the petitioner on the post of Chowkidar. The aforesaid post is also not a regular sanctioned post in the respondent- Department and it was sanctioned to be filled up through contract and budget for payment was also granted year to year. Hence, under these circumstances, in absence of any regular sanctioned post, there was no occasion whatsoever to consider the case of the petitioner for regularization. It was also submitted that even the notification dated 27.02.2009, whereby suitable amendments were made in Rajasthan Class-IV Service Rules in order to make a provision for regularization, requirement before conducting a screening is that the post must be sanctioned and available. In the instant case on account of there being no regular sanctioned post, even the aforesaid notification dated 27.02.2009 cannot be pressed into service.

8. Learned counsel for the respondents further states that looking at the longevity of services rendered by the petitioner, he is being granted pay in the minimum of pay scale prescribed for Class-IV employee.

9. Learned counsel for the respondents also submits that originally writ petition was filed by two persons namely Gauri [2025:RJ-JP:33424] (5 of 13) [CW-8332/2002] Shanker Mehra and Nawal Kishore. Both of them were granted minimum pay scale. The other co-petitioner of the present petition was satisfied by the granting of regular pay scale and accordingly, he withdrew the writ petition qua his rights. Case of the petitioner cannot be said to be at higher pedestal than the case of his co- petitioner Gori Shanker Mehra. Hence, in view of above, he prayed for dismissing the writ petition.

10. Learned counsel for the respondents has relied upon the judgment of Indra Vs. The State of Rajasthan (S.B. Civil Writ Petition No.7318/2003 decided on 23.04.2025 in order to show that the respondent-Social Welfare Department has regularized the Cook/Chowkidars appointed prior to 01.05.1995, however, the appointment of the petitioner was just subsequent to aforesaid date, hence, the petitioner cannot seek any regularization.

11. Heard counsel appearing for parties and examined the record.

12. It has come on record that although the post on which the petitioner is working was sanctioned but only to be filled through contract. Such sanction used to be issued only for a particular year and thereafter again in the next year, separate budgets were allotted. Thus, the sanction was also issued year to year for continuing the petitioner on contract basis. The petitioner was still continued in the respondent-Department for around 27 years, which gives rise to the presumption that the work assigned to the petitioner was of perennial nature and cannot be said to be a temporary work or a project for a limited period. [2025:RJ-JP:33424] (6 of 13) [CW-8332/2002]

13. The respondents under these circumstances cannot show their inability to consider the case of the petitioner for regularization by stating to the post that was not sanctioned by the Competent Authority. The State, being a model employer cannot be allowed to put forward such lame excuses just to exploit the citizens. The petitioner has admittedly rendered pretty long services with the respondents and his rights are to be protected by way of framing proper Scheme. It has been informed that although in compliance of earlier judgment of the Hon’ble Supreme Court in the case of Umadevi (supra), the State came out with Regularization Scheme in the form of notification dated

27.02.2009, yet a rider was put by the respondents that such considerations would be only in the case of regular sanctioned post.

14. It would also be relevant to refer that recently the Hon’ble Supreme Court considered the similar circumstances in the case of Dharam Singh & Ors. Vs. State of U.P. & Anr. (Civil Appeal No.8558/2018) decided on 19.08.2025 where after considering the cases of Umadevi (supra), Jaggo Vs. Union of India reported in 2024 SCC OnLine SC 3826 and Shripal & Anr. Vs. Nagar Nigam, Ghaziabad reported in 2025 SCC OnLine SC 221, the Hon’ble Supreme Court has observed as under: "(1) When public institutions depend, day after day, on the same hands to perform permanent tasks, equity demands that those tasks are placed on sanctioned posts, and those workers are treated with fairness and dignity. The controversy before us is not about rewarding irregular employment. It is about whether years of ad hoc engagement, [2025:RJ-JP:33424] (7 of 13) [CW-8332/2002] defended by shifting excuses and pleas of financial strain, can be used to deny the rights of those who have kept public institutions running. We resolve it by insisting that public employment should be organised with fairness, reasoned decision making, and respect for the dignity of work. (3) By the impugned order, the Division Bench of the High Court affirmed the dismissal of the writ petition on the premise that the appellants were engaged on daily-wage basis and that there were no rules in the U.P. Higher Education Services Commission1 (Respondent No. 2 herein) for regularization. Moreover, the Court observed that no vacancies existed against which the appellants could be considered. (4.7) By judgment dated 19.05.2009, the learned Single Judge of the High Court dismissed the writ petition, holding that no rules for regularisation in the Commission had been shown and that even assuming the 1998 Regularisation Rules applied, there were no vacancies for the appellants. Moreover, the Single Judge held that regularisation was impermissible in view of the law declared in Secretary, State of Karnataka. v. Umadevi3 and allied precedents. It was also observed that the petitioners (appellants herein) had not specifically assailed decision dated 25.11.2003. (4.8) The appellants preferred Special Appeal No. 1245 of 2009. By the impugned judgment, the Division Bench of the High Court affirmed the dismissal, observing that the appellants were daily wagers, that there were no rules for regularisation in the Commission and that no vacancy existed for considering them. (6) The question before us is whether the High Court erred in failing to adjudicate the appellants' principal challenge to the State's refusals to sanction posts and treating the matter as a mere plea for regularization, and, if so, given the appellants' long and undisputed service, what appropriate relief ought to follow from this Court. (7) Having heard the learned counsel for the parties and perused the record, we are unable to endorse the approach adopted by the High Court. The original writ petition before the High Court expressly assailed the State's refusal dated 11.11.1999 to sanction posts for the Commission and sought a mandamus for creation of posts with consequential consideration for the appellants. The Single Judge of the High Court, and the Division Bench of the High Court in appeal, treated the matter as a bare plea for regularisation, answered the subsequent [2025:RJ-JP:33424] (8 of 13) [CW-8332/2002] it only on the touchstone of absence of rules and vacancy, and rested principally on Umadevi (Supra). In doing so, the Courts below failed to adjudicate the principal challenge to the State's refusal and the legality of its reasons. In our opinion, such non-consideration amounts to a misdirection and, in effect, a failure to exercise jurisdiction. (8) The State's refusal of 11.11.1999 cites “financial constraints” and the subsequent decision of 25.11.2003 (taken after the High Court's direction to reconsider) adverts to financial crisis and a ban on creation of posts. Neither decision engages with relevant considerations placed on record, namely, the Commission's 1991 resolution and repeated proposals, the acknowledged administrative exigencies of a recruiting body handling large cycles, the continuous deployment of these very hands for years, and the existence of attendant work that is primarily perennial rather than sporadic. While creation of posts is primarily an executive function, the refusal to sanction posts cannot be immune from judicial scrutiny for arbitrariness. We believe that a non-speaking rejection on a generic plea of “financial constraints”, ignoring functional necessity and the employer's own longstanding reliance on daily wagers to discharge regular duties, does not meet the standard of reasonableness expected of a model public institution. (11) Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non-suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State's arbitrary refusals to sanction posts despite the employer's own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand, Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order. Recent decisions of this Court in Jaggo v. Union of India4 and in Shripal v. Nagar Nigam, Ghaziabad5 have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term “ad hocism”, the use of outsourcing as a proxy, or the denial of basic parity where identical duties are exacted over extended periods. The principles articulated therein [2025:RJ-JP:33424] (9 of 13) [CW-8332/2002] apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder: “14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily- wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are “illegal” and those that are “irregular,” the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices. 15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records-despite directions to do so-allows an adverse inference under well- established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite “temporary” employment practices as done by a recent judgment of this court in Jaggo v. Union of India3 in the following paragraphs: “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such [2025:RJ-JP:33424] (10 of 13) [CW-8332/2002] Government practices have been criticized for exploiting workers and undermining labour standards. institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. ………

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: Misuse of “Temporary” Labels: • Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as “temporary” or “contractual,” even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. • Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. [2025:RJ-JP:33424] (11 of 13) [CW-8332/2002] increasingly resort • Using Outsourcing as a Shield: Institutions outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, unforeseen circumstances.”” (12) We also note the Commission's affidavit filed in 21.04.2025 pursuant to the order of this Court dated 27.03.2025, wherein reference has been made to a supervening reorganisation in 2024, whereby the U.P. Higher Education Services Commission was merged into the U.P. Education Services Selection Commission and, by a Government Order of 05.07.2024, certain Group-C posts were sanctioned while Class-IV/Driver requirements were proposed to be met through outsourcing. We must point out however, that supervening structural change cannot extinguish accrued claims or pending proceedings. The successor body steps into the shoes of its predecessor subject to liabilities and obligations arising from the prior regime. More fundamentally, a later policy to outsource Class-IV/Driver functions cannot retrospectively validate earlier arbitrary refusals, nor can it be invoked to deny consideration to workers on whose continuous services the establishment relied for decades. (13) As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not “full- time” employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals. It neither creates rights that did not exist nor erases [2025:RJ-JP:33424] (12 of 13) [CW-8332/2002] entitlements that may arise upon a proper adjudication of the legality of those refusals. (15) Therefore, in view of the foregoing observations, the impugned order of the High Court cannot be sustained. The State's refusals dated 11.11.1999 and 25.11.2003, in so far as they concern the Commission's proposals sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed. (19) Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions: i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization/retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity [2025:RJ-JP:33424] (13 of 13) [CW-8332/2002] and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgment. iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgment. v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgment."

15. In the light of above observations given by the Hon’ble Supreme Court in the case of Dharam Singh (supra) the writ petition filed by the petitioner is allowed.

16. The respondents are directed to consider the case of the petitioner for regularization in the light of aforesaid judgment of the Hon’ble Supreme Court and to pass an appropriate order within a period of three months from the date of certified copy of this order. In case, the petitioner is found fit for regularization, consequential benefits of difference of pay and arrears thereof be also given to be petitioner within the aforesaid period. Pending application(s), if any, stands disposed of. Ordered accordingly. (ANAND SHARMA),J

18. DAKSH/10