Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 486 OF 2011 [Arising out of SLP [C] No.1927/2005]

State of Rajasthan & Ors. … Appellants

Vs.

Daya Lal & Ors. … Respondents WITH

C.A. No. 487 of 2011 [@ SLP [C] No.1928/2005] C.A. No. 488 of 2011 [@ SLP [C] No.1930/2005] C.A. No. 489 of 2011 [@ SLP [C] No.1931/2005] C.A. No. 490 of 2011 [@ SLP [C] No.1933/2005] C.A. No. 491 of 2011 [@ SLP [C] No.1934/2005] C.A. No. 492 of 2011 [@ SLP [C] No.1939/2005] C.A. No. 493 of 2011 [@ SLP [C] No.13832/2006] C.A. No. 494 of 2011 [@ SLP [C] No.13851/2006] C.A. No. 495 of 2011 [@ SLP [C] No.14084/2006]

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. The first matter relates to persons temporarily appointed as Assistant  

Superintendents in 1985 and 1986 in aided hostels. The prefix ‘Assistant’  

was  omitted  in  1996  and  thereafter  the  respondents  were  known  as  

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Superintendents.  The  second  matter  relates  to  a  person  temporarily  

appointed as a Superintendent on 30.6.1998 in an aided hostel. They filed  

writ  petitions contending that  they were employed on full-time basis  and  

were  discharging  functions  similar  to  those  of  Superintendents  in  

Government hostels, but were being paid only a meagre salary while their  

counterparts in Government hostels are paid much higher pay in the scale of  

Rs.4000-6100 in  the  category  (A)  and (B)  Hostels  and  Rs.3200-4900  in  

category  ‘C’  hostels.  They  sought  regularization  in  the  posts  of  Hostel  

Superintendent from the date of initial appointment and payment of salary  

on par with hostel Superintendent of class ‘C’ hostels of the Social Welfare  

Department.  

3. The respective respondents in the remaining eight appeals, claim that  

they were appointed in the years 1995, 1996, 1997 and 1998, as part-time  

cooks/chowkidars in government hostels run by Social Welfare Department.  

They claim that their appointment orders were issued by the respective Mess  

Committee  of  the  hostel  where  they  were  employed;  that  the  State  

Government was paying a fixed amount of Rs.600/- per month in the form  

of aid to the concerned Hostel Mess Committee which, in turn, was being  

paid to them as remuneration. The State Government issued an order dated  

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28.12.1998,  stopping  the  practice  of  appointing  Class  IV  employees  on  

consolidated wages and to remove any person appointed on that basis. By  

subsequent  circular  dated  21.1.1999,  the  District  Social  Welfare  Officers  

were  directed  to  remove  part  time  chowkidars/cooks  employed  by  the  

Department with effect from 1.2.1999 and replace them by ex-servicemen or  

widows  of  ex-servicemen.  In  view  of  the  Government  directives,  the  

respondents  apprehended  their  services  may  be  dispensed  with.  [The  

services of two of the respondents – Madan Lal Yogi and Kurda Ram who  

were  appointed  on  15.7.1995  and  1.7.1995  respectively  were  however  

terminated  even  earlier,  on  17.3.1997  and  28.12.1998].  The  respondents  

submitted that this Court had earlier approved a scheme under which part  

time  cooks  and  chowkidars  who  were  working  as  on  1.5.1995  were  

regularized; and that as they (respondents) were all appointed subsequent to  

1.5.1995 and were  not  therefore  covered  under  the  said  scheme,  a  fresh  

scheme  should  be  framed  to  benefit  them.  They  therefore  sought  a  

declaration that the circulars dated 28.12.1998  and 1.2.1999, were invalid  

and a direction for regularization by framing an appropriate scheme similar  

to the scheme framed by the State Government in pursuance of the order  

dated  26.5.1995  of  the  Rajasthan  High  Court  in  WP  No.3453/1994  --  

Anshkalin Samaj Kalyan Sangh, Banswara vs. The State of Rajasthan.  

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4. In the first seven appeals, a learned Single Judge by a common order  

dated 7.5.2003 allowed the writ petitions. He held that the writ petitioners  

working on the posts of Superintendent, Cooks and Chowkidars are entitled  

to salary on par with the salary which was paid to their counterparts holding  

similar  posts in the hostels  run by the Social  Welfare  Department of the  

State  Government  with  effect  from  the  dates  of  their  respective  writ  

petitions.  He  also  held  that  any  attempt  to  terminate  the  services  of  

employees  working in  the  hostels  on consolidated  salary  was unjust  and  

illegal and therefore the writ petitioners should be permitted to continue to  

work on the posts which they were holding as on the date of filing their  

respective  writ  petitions.  He  directed  the  State  Government  to  frame  a  

scheme on the same lines in which the State Government had earlier framed  

a scheme relating to part-time cooks and chowkidars (who were serving as  

on 1.5.1995). He also quashed the orders dated 28.12.1998 and 21.1.1999  

(which  directed  chowkidars  and  cooks  employed  on  consolidated  wages  

should  be  removed  with  immediate  effect  from 1.2.1999  and  should  be  

replaced  by  ex-servicemen  or  widows  of  ex-servicemen).  The  scheme  

referred to by the learned Single Judge was the scheme which was framed by  

the State Government in pursuance of the directions of the Rajasthan High  

Court in Anshkalin Samaj Kalyan Sangh (supra) which was approved by this  

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court  in 1996 (in CA No.365/1994 –  State of Rajasthan vs.  Mod Singh).  

Feeling  aggrieved,  the  State  filed  appeals  which  were  dismissed  by  a  

common judgment dated 16.8.2004. The said judgments are challenged in  

the first seven appeals by the State and its functionaries.  

5. In the next  two appeals,  a  learned Single Judge by common order  

dated 5.2.2001 allowed the writ petitions of the respondent in terms of the  

following directions issued in Anshkalin Samaj Kalyan Sangh (supra) :  

“In the circumstances of the case, it would be just and proper to direct that  the  Chowkidars  and  Cooks  employed  in  the  hostels  run  by  the  Government or Government aided institutions, shall be paid at the rate of  the minimum of the pay scale applicable to Class IV employees and Cooks  in the Government employment respectively from the date of their filing  of the petition. In cases of those who have filed the petition, in cases of  those who have not filed the petition, it shall be paid from the date of this  order.  So  far  as  the  regularization  is  concerned,  the  cases  of  all  such  employees  who  have  put  in  service  of  five  years  or  more  shall  be  immediately taken up for consideration for regularization and scheme for  regularization of their services shall be framed and put into effect within a  period  of  six  months  from  today.   A  scheme  for  regularization  of  employment of such employees who have not completed five years service  shall also be framed within a reasonable time by the Government. These  directions shall be applicable in the cases of all the employees similarly  situated working in the hostels under the Social Welfare Department of the  State irrespective of the fact whether such employees have filed petitions  in this Court or not. The benefit of this Order shall be available to only  those employees who were in service on the day of filing of petition or the  date of this order as the case may be.”      

The writ appeals filed by the State against the said order were dismissed by a  

division bench by common order dated 16.11.2005.  

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6. In  the  last  appeal  (relating  to  Kurda  Ram),  the  writ  petition  for  

regularization  was  dismissed  by  a  learned  Single  Judge  by  order  dated  

3.5.1999. However, the special appeal filed by the respondent was allowed  

by  order  dated  2.12.2005  and  the  order  of  termination  was  set  aside  

following the decision dated 16.8.2004 (which is the subject matter of the  

first seven appeals). The division bench observed that the respondents’ case  

may be considered in the light of the decision of this court in the pending  

challenge to the order dated 16.8.2004.     

7. Two questions therefore arise for consideration in these appeals :  

(i) Whether  persons  appointed  as  Superintendents  in  aided  non-

governmental  Hostels  are  entitled  to  claim  absorption  by  way  of  

regularization in government service or salary on par with Superintendents  

in Government Hostels?  

(ii) Whether  part-time cooks  and chowkidars  appointed temporarily  by  

Mess Committees of Government Hostels, with two or three years service,  

are entitled to regularization by framing a special scheme?  

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8. 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 an 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  

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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  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 vs. Uma Devi – 2006 (4) SCC 1,  M.  

Raja  vs.  CEERI  Educational  Society,  Pilani –  2006 (12)  SCC 636,  S.C.  

Chandra vs. State of Jharkhand – 2007 (8) SCC 279,  Kurukshetra Central   

Co-operative Bank Ltd vs. Mehar Chand – 2007 (15) SCC 680, and Official   

Liquidator vs. Dayanand – 2008 (10 SCC 1)

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9. As noticed above, the respondents in these appeals were appointed in  

pursuance of the Government & Aided Hostels Management Rules, 1982  

which  were  issued  by  the  State  Government  on  18.1.1982.  Though they  

were referred to as Rules, they were not statutory rules framed by the State  

Government in pursuance of any power vested in the State by the legislature  

under any enactment. They were more in the nature of executive instructions  

and guidelines framed for administrative convenience. The said rules were  

intended  to  apply  to  Government  hostels  run  by  the  Social  Welfare  

Department as also aided hostels which received any aid in the form of grant  

from  the  Social  Welfare  Department.  We  may  refer  to  the  relevant  

provisions of these Rules.  

9.1) Rule 5 indicated the staff pattern in Government Hostels. Clause (2)  

of Rule 5 provided that every government hostel  should have an Assistant  

Superintendent and the salary of the Assistant Superintendent in ‘A’ and ‘B’  

category hostels will be in the pay scale of Rs.385-650 and in ‘C’ category  

hostels, the salary will be in the pay-scale of Rs.350-570. Clauses (4), (5)  

and (6) of Rule 5 provided that every hostel will have one temporary Doctor  

(who will be paid a monthly conveyance allowance of Rs.75/- in ‘A’ & ‘B’  

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category Hostels and Rs.50/- in ‘C’ category Hostels), a Class IV employee  

who was to stay in the hostel by being provided accommodation and a Safai  

Karamchari who was to be appointed on temporary basis.  

9.2) Clause 9 provided that  every Government hostel  will  have a Mess  

Committee  consisting  of  Superintendent/Warden  as  the  President,  one  

elected Secretary from among the students, five other students as members  

and an Assistant Superintendent as accountant-cum-cashier.  Clause (3) of  

Rule  9  provided  that  the  Mess  Committee  will  arrange  for  the  food,  

breakfast, water, electricity, clothes, hair-cutting, soap, oil and shoes etc. for  

the students for which the Government would pay to the Mess Committee a  

sum of   Rs.80/-  per  student  (relating  to  students  of  Classes  6  to  8)  and  

Rs.85/-  per  month  (relating  to  students  of  Classes  9  to  11).  For  every  

academic  session,  the  Government  would  also  pay  in  a  lumpsum to  the  

District  Officer,  a  sum  calculated  at  the  rate  of  Rs.60/-per  student  (for  

classes 9 to 11) and Rs.40/- per student (for classes 6 to 8) for providing  

books,  stationery and fees for the students in the Hostels.   Clause (7)  of  

Rule 9 provided that Mess Committee of Government Hostels will not be  

provided departmental cooks but each Mess Committee will be given a grant  

of Rs.250/- per month per cook and the number of cooks will be decided  

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with reference to the number of students (one cook for 25 students) and the  

appointment of cooks will be on part-time basis for ten months in a year.  

9.3) Rule 11 related to recognition of aided hostels and their management.  

Clause (1) thereof provided that registered voluntary service organizations  

are  required  to  submit  applications  to  the  Director  for  management  of  

hostels,  recognition and permission of grant. Clause (2) provided that the  

Director, Social Welfare Department, will dispose of the applications taking  

note  of  the  availability  of  sufficient  building  and other  sources,  whether  

sufficient means for meeting the necessary expenses are available with the  

organization in the proposed hostel, whether the organization is capable of  

providing the prescribed facilities in the hostel. Clause (3) provided that one  

of  the  conditions  for  sanction  of  the  hostel  is  the  admission  of  students  

belonging  to  scheduled  castes,  scheduled  tribes  and backward  classes  as  

declared  by  the  Government  from time  to  time.   Clause  (5)  of  Rule  11  

provided that 90% of the amount payable by the Social Welfare Department  

to the Aided Hostels (for providing food, clothes etc. to the students) will be  

paid to the account of the Mess Committee (calculated with reference to the  

number of students) and grant for fees and books of the students will be  

distributed by the District Offices. It further provided that  the expenses on  

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the salary and allowances of Assistant Superintendent, class IV employees   

appointed  by  the  Aided  organization,  cost  of  fixed  assets  and  rent  of   

building will be borne by the aided organization which runs the hostel.  

Re : Question (i) – First two appeals relating to aided hostels  

10. It  is  thus evident  that  insofar  as aided hostels  were concerned,  the  

Government was liable only to extend aid by way of  a grant to students of 6  

to 8 standards and students of 8 to 11 standards, staying in such hostels, to  

meet the expenditure of food, water, electricity, clothes, hair-cutting, soap,  

oil and shoes and another grant for books and stationery of such students.  

The  Government  was  not  liable  to  bear  the  expenses  of  salary  and  

allowances of the employees of the aided hostels and it was for the private  

organizations which ran the aided hostels to meet the salaries of employees  

from their own resources. The persons employed in the aided hostels were  

the employees of the respective organizations running those hostels and not  

the employees of the Government. The Government has merely prescribed  

the eligibility conditions to be fulfilled by the private organizations to get  

grants to meet the food and education expenses of students staying in such  

hostels. Therefore under no stretch of imagination persons employed by the  

aided  hostels  could  be  termed  as  persons  employed  by  the  State  

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Government.  Nor  could  the  Government  be  held  liable  for  their  service  

conditions,  absorption,  regularisation  or  salary  of  employees  of  private  

hostels.  If  the  employees  (either  permanent  or  temporary)  of  the  aided  

hostels are not the employees of the Government, but of the aided private  

charitable  organizations  which  run  such  aided  hostels,  they  could  not  

obviously maintain any writ petition claiming the status or salary on par with  

the  corresponding  post-holders  in  State  Government  service,  nor  claim  

regularization  of  service  under  the  state  government.  Hence,  the  writ  

petitions by persons employed in aided hostels for relief of regularization or  

parity  in pay,  were not  maintainable  and the decision  of  the High Court  

granting any relief to them cannot be sustained.  

Re  :  Question  (ii)  -  The  other  appeals  relating  to  part-time  cooks/chowkidars in government hostels.

11. The part-time  cooks  and chowkidars  were  employed on temporary  

basis in the Government hostels in the years 1995, 1996, 1997 and 1998.  

They approached the High court in the year 1999 (except Madan Lal Yogi  

who approached in the year 1997). The services of some of them had been  

terminated within one or two years from the date of temporary appointment.  

Though  the  State  had  taken  a  decision  to  terminate  all  those  who  were  

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appointed  on  consolidated  wage  basis,  the  other  respondents  continued  

because of the interim orders by courts. Service for a period of one or two  

years or continuation for some more years by virtue of final orders under  

challenge, or interim orders, will not entitle them to any kind of relief either  

with  reference  to  regularization  nor  for  payment  of  salary  on  par  with  

regular employees of the Department.  

12. The decision relied upon by the High Court namely the decision in  

Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state  

government  to  frame a  scheme for  regularization  of  part-time  cooks  and  

chowkidars. It is clear from the said decision, that such scheme was intended  

to be an one-time measure. Further said decision was rendered by the High  

Court prior to  Uma Devi,  relying upon the decision of this Court in  Daily  

Rated Casual  Labour vs.  Union of  India [1988 (1)  SCC 122],  Bhagwati   

Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC  

361]  and  Dharwad  District  PWD  Literate  Dalit  Wage  Employees   

Association vs.  State of Karnataka [1990 (2) SCC 396]. These directions  

were considered, explained and in fact, overruled by the Constitution Bench  

in  Uma Devi. The decision in  Anshkalin Samay Kalyan Singh is no longer  

good  law.  At  all  events,  even  if  there  was  an  one  time  scheme  for  

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regularisation of those who were in service prior to 1.5.1995, there cannot  

obviously  be  successive  directions  for  scheme  after  scheme  for  

regularization  of  irregular  or  part-time  appointments.  Therefore  the  said  

decision is of no assistance.

Conclusion  

13. In view of the above, both the questions are answered in the negative  

and in favour of the appellants. Therefore, none of the respondents is entitled  

to any relief. All the appeals are allowed and the orders of the High Court  

challenged in these appeals are set aside. Consequently, the writ petitions  

filed by the respondents before the High Court stand dismissed.

……………………….J. (R V Raveendran)

New Delhi; ……………………..J. January 13, 2011. (Markandey Katju)

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