The State's action in denying regularization and minimum pay to the respondent-employee was arbitrary and unreasonable, violating Article 14 of the Constitution of India. The respondent-employee was entitled to minimum pay in the pay scale of Class-IV employees because he had worked for equal hours as regular Class-IV employees.

ORDER :

This case has a chequered history. The instant special appeal has been filed by the appellants-State employer challenging the order dated 09.08.2017 passed by the learned Single Judge, whereby the respondent-employee has been denied the benefit of regularization of his services but has been granted minimum pay in the pay scale of Class-IV employee.

2. The present appeal was filed belatedly and as such the Coordinate Bench of this Court on 21.10.2021 dismissed the application of the State filed under Section 5 of the Limitation Act by a detailed order.

3. The order dated 21.10.2021 was put to challenge by the appellants-State before the Apex Court in Civil Appeal No.1873/2022 (SLP(C) No.4248/2022) and the Apex Court allowed the Special Leave Petition of the State and order of the High Court dated 21.10.2021, was set aside and delay in filing the appeal was also condoned. The Apex Court remitted the matter back to the High Court for deciding on merits, in accordance with law. However, the order passed by the Learned Single Judge was to remain stayed till such time an application for stay was decided by the Division Bench.

4. Learned Additional Advocate General Mr. C.L. Saini has made following the submissions challenging the order dated 09.08.2017 passed by the Learned Single Judge:-

4.1. The learned Single Judge could not have decided the disputed questions of fact in the writ petition filed by the respondent-employee under Article 226 of the Constitution of India.

4.2. The respondent-employee since was not appointed against the sanctioned posts, as such the relief of minimum pay in the pay scale of Class-IV employee, was not permissible in the eye of law.

4.3. The very first appointment order of the respondent-employee was on part time basis and as such no right was conferred in favour of the respondent-employee being a part time employee, to claim the benefit of either regularization or minimum pay in the regular pay scale of Class-IV employee.

4.4. The findings of the Learned Single Judge in respect of treating the respondent-employee as a part time employee is contrary to record and the experience certificate issued in favour of the respondent-employee since did not bear any dispatch number, the same is not an official document to support claim of the employee.

4.5. The very first appointment order of the respondent-employee was of a part time employee, as such no right could have been claimed even on the basis of appointment order issued in favour of the respondent-employee.

4.6. Learned counsel submitted that the State has enacted The Rajasthan (Regulation of Appointments to Public Services and Rationalisation of Staff) Act, 1999 (hereinafter read as the ‘Act of 1999’) and as per Section 9 of the Act of 1999, even a daily wage employee or the person appointed on an urgent temporary basis, will not have a right of regularization of services and as such learned Single Judge without considering the impact of Section 9 of the Act of 1999, has passed the impugned order.

4.7. The Apex Court has consistently laid down the principle that in absence of the sanctioned post neither regularization nor minimum pay in a particular pay scale is admissible.

4.8. The judgments relied by the learned Single Judge were not applicable in the facts of present case and on the contrary, as per law declared by the Apex Court in the case of State of Bihar & Ors. Vs. Bihar Secondary Teachers Struggle Committee, Munger & Ors. reported in (2019) 18 SCC 301, the principle of equal pay for equal work will not be applicable in respect of the employees, who are not appointed by proper & regular process of recruitment.

5. Learned counsel for the appellants-State has placed reliance on a judgment passed by the Apex Court in the case of Union of India & Ors. Vs. Ilmo Devi & Anr. reported in AIR 2021 SC 4855 and judgment passed by the Division Bench in the case of D.B.Civil Special Appeal (Writ) No.927/2020 (The State of Rajasthan & Anr. Vs. Anil Kumar & Anr.) d