IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.8659/02 Hemant Kumar vs. State & Ors. Date of order : 6/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vigyan Shah for the petitioner. Shri Hemant Gupta, Additional Government Counsel for the State. ****** Heard learned counsel for the parties. The petitioner has filed this writ petition with the prayer that the respondents be directed to consider his case for regularisation in terms of earlier judgement of this Court passed in his writ petition no.2740/1993 dated 21.8.2000. Shri Vigyan Shah, learned counsel for the petitioner has contended that the petitioner was originally appointed on the post of Class- IV employee on daily wage basis with the respondents with effect from 1.7.1986. His services were terminated on 1.5.1987 by verbal order. The petitioner approached this Court by filing writ petition no.1778/1989 which was allowed by judgement of this Court dated 4.4.1991 with direction to the respondents to regularise the services of the petitioner with all consequential benefits. Since the petitioner has not been paid the regular pay scale, he filed another writ petition on the principle of equal pay for equal work for payment of regular pay as also for regularisation. In the said writ petition, the respondents took the stand that the case of the petitioner for regularisation has already been recommended to the Government for its approval, but since there was no proper sanction of the Finance Department, he has not be regularised. Learned counsel submitted that this stand was taken by the respondents because of the provisions of Act of 1999 especially Section 9 and 11 thereof operating that time. The aforesaid provisions were declared ultra vires by judgement of division bench in Bhawani Singh vs. State of Rajasthan, D.B. Civil Writ Petition No.3271/01. The respondents have even then not considered the case of the petitioner though the petitioner by now have rendered more than 22 years of service. Learned counsel submitted that recently the petitioner has been conveyed by the respondents by letter dated 16.1.2006 that his case for regularisation cannot be considered because of the pendency of the writ petition in response to notice of his counsel. Learned counsel for the petitioner has also cited the judgement of Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors.-(2006) 4 SCC page 1 and submitted that in para 53 of the judgement, it was observed that such of the employees who have been continued in service of the government for more than 10 years without any interim order passed in their favour need to be considered for regularisation as a one time measure by the government. Shri Hemant Gupta, learned Additional Government Counsel opposed the writ petition and submitted that the appointment of the petitioner was made only on daily wage basis and that he was engaged only as per the need of the times. The petitioner was appointed on stop gap arrangement basis and not by way of any regular mode of recruitment. There was no vacant post available with the respondents so as to regularise the petitioner. The case of the petitioner therefore cannot be considered for regularisation. I have given my anxious consideration to the arguments aforesaid and perused the material on record. The facts of the case would show that practically the petitioner has been continued with the respondents since 1.7.1986 initially when he was removed on 1.5.1987. The removal order was quashed and set aside by this Court and the respondents were directed to regularise him in service vide judgement dated 4.4.1991. Also this Court vide its judgement dated 21.8.2000 while allowing the another writ petition of the petitioner directed the respondents to consider the case of the petitioner for regularisation in the following terms:- “Accordingly, the writ petition is partly allowed. Respondents are directed to pay the minimum of the pay scale of Class IV to the petitioner from 1.6.1993. The respondents shall also consider the case of the petitioner for regularisation in accordance with rules. The arrears, as referred above be paid to the petitioner within 30 days from the date of receipt of certified copy of this order.” The contention of the respondents that the case of the petitioner cannot be considered because there is no vacant post is different than their stand which they took before this Court in the earlier writ petition which was decided by judgement dated 21.8.2000. In that case, what was contended by them is that the case of the petitioner was already sent to the Government for its regularisation and the order could not be passed because proper sanction from the Finance Department has not been received so far. Moreover, the respondents in reply to the notice served by the petitioner's counsel in their letter dated 16.1.2006 have cited the reason of pendency of the writ petition for not regularising his services and due to non availability of post. The Supreme Court in Uma Devi, supra in such like cases where the employees have continued for more than 10 years or so, directed the Government to regularise such employees as a one time measure but here in the instant case the petitioner has continued with the respondents for last more than 22 years. This writ petition has been filed because the respondents have not complied with the direction in the judgement dated 21.8.2000. By way of this writ petition, the direction of the earlier judgement need to be reiterated. In the result, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for regularisation in terms of the observations made by the Supreme Court in para 53 in Uma Devi and pass the required order within a period of three months from the date copy of this judgement is produced before them. (MOHAMMAD RAFIQ), J. RS/