IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Writ Petition No.4478/1995 Gopal Singh vs. State & Ors. Date of Judgement : : May 28, 2009 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad for petitioner. Shri Pradeep Kalwania, Addl. Govt. Counsel for State. REPORTABLE This writ petition was filed by Gopal Singh in the year 1995 challenging the oral order of his termination by the respondents from their services and with the prayer that the respondents be directed to reinstate him in service with consequential benefits and with the further direction to the respondents to regularize his service on the post of Langari with effect from the date of his initial appointment and make payment of his salary in the regular pay scale on that post from the date of his initial appointment together with arrears. According to the petitioner, he was appointed on temporary basis as Langari 1 (Cook) in mess of Mania Police Station on the consolidated payment of Rs.150/- per month in the beginning of the year 1983. When he filed the writ petition in 1995, he asserted that he has been continuously working with the respondents for 18 years. He was required to discharge the duties in the morning as well as in the evening to prepare food for not only staff of the Police Station but also for the prisoners who were kept in the lock up of that Police Station. On one of his representations, Collector, Dholpur by his letter dated 9.4.1991 directed the SHO, Police Station, Mania to look into the matter and take necessary action. The consolidated salary of the petitioner was increased to Rs.250/- per month with effect from March, 1993 but he was still not paid any regular pay scale. Petitioner thereafter again submitted number of representations praying for his regularization. The SHO Police Station, Mania, Dholpur also recommended his regularization. Copies of the representations dated 5.12.1992, 2 25.4.1993 and 18.12.1993 are on record. When the respondents did not regularize his service, the petitioner approached this Court by filing the S.B. Civil Writ Petition No.2942/1994 which was dismissed by judgement of this Court dated 6.7.1994 with liberty to the petitioner to make a representation to the respondents and direction to the respondents to decide the same within one month from the date of submission of certified copy of the order. It is contended that when nothing was done, the petitioner served a notice for demand of justice on 17.8.1995. On receipt of such notice, S.P., Dholpur visited the Police Station Mania on 11.9.1995 and he was apparently annoyed with the notice of the petitioner intending to initiate legal action. He asked the petitioner not to come on duty. Thereafter, SHO, Mania accordingly instructed the petitioner. Shri Rajendra Prasad, learned counsel for the petitioner has argued that once, this Court on consideration of the fact that petitioner has discharged duties of 3 the Cook with Police Station Mania for last 18 years, directed the respondents to consider representation of the petitioner, the respondents were required to objectively consider such representation as warranted in law. Instead of doing so, the respondent no.3, S.P. Dholpur took offence and by oral order terminated services of the petitioner. It is contended that petitioner had been not only regularly working for last 18 years, but was also preparing food and refreshment etc. in the morning as well as evening. He was therefore entitled to be paid regular pay scale and made permanent. The action of the respondents in terminating his services is bad in law. Learned counsel argued that the Cooks working in the hostels run by Social Welfare Department were also described as part time Cook and their matter traveled upto to the Supreme Court in which case, as per the direction of the Supreme Court, the State Government prepared a scheme and they 4 were granted benefit of regularization in three phases. The petitioner was still being paid consolidated salary by the Government. The respondents in reply to the writ petition however set up a false plea that the petitioner was never working with Police Station Mania and he was never appointed on the post of Cook. The respondents have taken an absolutely false stand that it was an arrangement between the petitioner and the employees of the Police Station concerned and that the employees of the Police Station themselves were paying him a sum of Rs.250/- in lieu of cooking of food, there was no question of regularizing his services. Referring to para 4 of the rejoinder, learned counsel submitted that the petitioner has produced on record particulars of the bills of salary paid to him from February, 1983 till 1993 to show that payment of his salary was made by the government treasury. This fact has not at all been rebutted by the respondents and in spite of specific 5 direction passed by this Court on 17.9.1997 when the respondents failed to rebut the aforesaid record, this Court by its order dated 15.7.2002 directed that the Court shall have no option but to draw adverse inference against the respondents. Learned counsel referred to the additional affidavit submitted by the respondents in which reference of Circular dated 22.12.1981 has been made and argued that even in this Circular, there is reference to number of posts of Cooks in each of the Police Station and the payment of monthly salary to them in the sum of Rs.200/- for City/GRP Police Stations and for City Police Stations other than districts of Range Headquarters, Rs.150/- per month and Rs.100/- per month for rest of the Police Stations. In this Circular also, it has been stated that their salary shall be paid out of the government fund. Learned counsel referred to item no.18 of the Scheduled appended to Rajasthan Civil Services (CCA) Rules, 1958 to show that post of Cook being a Class IV post, would 6 be covered thereby. It cannot be therefore said that there are no rules for appointment on the post of Cook. It is contended that the mighty State has exploited the poor petitioner for 18 long years and when he ventilated his grievances, demanding redressal thereof, his services were arbitrarily terminated. The action of the respondents is wholly arbitrary and unreasonable inasmuch as violative of Article 14, 16, 21, 23 and 39(d) of the Constitution of India. The writ petition be therefore allowed in the terms prayed. Shri Pradeep Kalwania, learned Additional Government Counsel opposed the writ petition and submitted that since there is no sanctioned post of Cook (Langari), the petitioner could not be regularized on any such post. It is denied that petitioner was ever appointed on the regular basis on the post of Langari by Mania Police Station. It was a contractual appointment between the employees of that particular Police Station and the petitioner. No regular 7 service record of the petitioner was maintained. There can be no direction for regularisation when their does not exist any sanctioned post in Rajasthan Police Subordinate Service Rules. The appointment of the petitioner can neither be treated as made on ad hoc basis, nor on urgent temporary basis. Such appointment was dehors the rules. It was a contractual appointment between the employees of the Police Station and the petitioner and the petitioner should have availed of alternative remedy of either raising an industrial dispute or approaching the Civil Court. It was argued that all Police Stations appoint such part time Cooks at their own level. The Police Station pays stipend for their limited job. The approval for giving stipend to any private person so employed was granted by administrative order passed in the year 1981. I have given my anxious consideration to the rival submissions and perused the material available on record. 8 Consideration of the submissions made on behalf of the respondents in their pleadings as also in oral submissions, clearly shows that the respondents have not specifically contested two categorical pleas set up by the petitioner; firstly, as pleaded in para 4 of the writ petition that he had worked with the respondents for last 18 years and secondly, as pleaded in para 11 that when the petitioner served legal notice for demand of justice after judgment of this Court on 6.7.1994 demanding redressal of his grievance, the S.P., Dholpur personally visited Police Station Mania and directed his oral termination. Tone and tenure of the reply to the writ petition submitted by the respondents would clearly reflect an effort on their part to hide the truth from the Court. The respondents have at one place in the reply pleaded that the engagement of the petitioner was “an arrangement between petitioner and the employees of that particular Police Station” and at the other place it is stated that “it is a 9 contract between the petitioner and the employees of the Police Station Mania and the matter can be sorted out by the petitioner and the employees of the Police Station Mania.” What is stated at yet another place is that it is a matter of contract between the petitioner and the employees of the respondent no.4 and this Hon’ble Court has no material to probe into the question of nature of job and to find out whether it was a contract between the petitioner and the respondent no.3. They have resisted the petition on the ground that there was no sanctioned post of Cook and that the post of Cook is not included in the Rajasthan Police Subordinate Service Rules and that it was a case of contract and the petitioner was being paid by the employees of the Police Station. In fact, at one place in para 11 of the reply, it is stated that the petitioner has not placed any material on record to infer that the petitioner has been in service at Police Station Mania and that his services came to be terminated by respondent no.4 i.e. SHO, 10 of that Police Station. It was only when the petitioner filed rejoinder to the reply and in para 4, narrated the details of the bills of his salary starting from February, 1983 till November, 1993 that this Court by its order dated 17.9.1997 directed the respondents to verify and file an additional affidavit in regard to such details. No such affidavit was filed for a petty long time and in these circumstances, the matter was again listed before this Court on 15.7.2002 and this Court observed that since the respondents have failed to file additional affidavit in spite of the specific direction, the Court would have no option but to draw adverse inference against them. The matter was then listed for final disposal. Subsequently, the respondents have filed additional affidavit and have made some frank admissions that the petitioner was employee on part time basis in Police Station Mania for cooking purpose and that he was paid stipend, approval whereof was granted by administrative 11 order issued in 1981. A copy of the administrative order dated 22.12.1981 has been produced which shows that a total 903 posts of Cook were crated in various Police Stations / Police Lines in the State. They were divided in three categories. Total 133 Cooks posted in City / GRP Police Stations and 200 Cooks posted in GRP and Police Lines, thus in total 300 Cooks were being paid a sum of Rs.200 per month. 161 Cooks working in 92 City Police Stations were ordered to be paid a sum of Rs.150/- per month and the 409 Cooks working in remaining Police Stations were ordered to be paid a sum of Rs.100/- per month. It is stated that their appointment was not made in any regular pay scale and their salary shall be paid on consolidated basis. Their complete details shall be maintained in the respective Police Stations and in the office of Superintendent of Police which shall be forwarded to the Chief Accounts Officer of the Police Headquarters by 10th of every month. 12 I have noticed all the aforesaid facts in rather greater details to show the conduct of the State officials when contesting the litigation especially with persons like the petitioner who come from lower strata of society. Discussion made above would clearly show that the respondents have been less than fair and frank to this Court when they initially filed their counter affidavit. In fact, this case is a classic example of how the mighty State has been exploiting not only the petitioner but hundreds of other employees in his status and requiring them to work for just 100, 150 and 200 rupees paid for a month as Cook / Langari with the various Police Stations. The petitioner when he was lastly working with the respondents in 1995 was only being paid a sum of Rs.250/-. Requiring an employee to discharge the duties of a Cook to prepare food obviously in morning as well as in evening and yet pay him such a paltry sum, is a kind of beggar taken by the State from the helpless employee like the petitioner, who 13 obviously continue to provide their services under the infinite hope that their services might one day be regularized and they survive all this time presumably because when they prepare food they also share such food for themselves. This kind of exploitation earlier existed also in the hostels run by the Social Welfare Department through out the State Government and when the matter ultimately reached the Supreme Court, wisdom appears to have been dawned upon the State at the persuasion of the Apex Court where the State Government submitted a scheme for regularization of all such Cooks if they are in service on the date of promulgation of scheme and completed five years, less than five years and remaining employees, respectively in May, 1995. The scheme provided thus: “First Phase :- Part-time employees who have completed five years on May, 1995 or those part- time employees who have been given pay- scale No.1 in compliance of various court 14 judgements. These persons will be given appointment and regularisation in regular pay-scale of IV class employee from 15th Aug, 1996. The total number of these persons are 316. Second Phase: The employees having less than five years of experience on May, 1995 and completed two years service, such 152 part time employees will be regularised from 01.04.97. Third Phase: In the 3rd and last phase remaining 307 employees who were working on May, 1995 will be provided regular pay-scale and will be regularised on 01.04.98.” A single bench of this Court for the subsequent period also in Dayalal & Ors. vs. State of Raj. & Ors.-2003 (3) WLC (Raj.) 599 taking note of the fact that the Cooks and Chowkidars working in hostels run by Social Welfare Department should not be made to work as such on payment of meager sum of Rs.250/-, held that this is nothing but taking begar by the employer from the employees which is 15 hit by Article 23 of the Constitution of India. The Court can take judicial note of the fact that no one can survive by this small amount of Rs.250/- or Rs.600/- per month. It was held that giving a person employment on shockingly low salary demonstrates only the browbeaten and broken condition of the person serving for such a salary. Here in the present case, action of the respondents in terminating services of the petitioner was capricious, arbitrary and unreasonable and amounted to colourable exercise of power. I am inclined to uphold the argument of the petitioner that his services were terminated because he dared demand regular pay scale on the principle of equal pay for equal work and regularization in service and approached this Court for that purpose. As per the order passed by this Court, he submitted representation followed by a notice for demand of justice and annoyed thereby the S.P., Dholpur directed his oral termination. No opportunity of hearing 16 was provided to him before passing order of his termination. This order was thus passed in utter violation of principles of natural justice. The order of termination is thus held to be illegal and unconstitutional and violative of article 14, 16 and 21 of the Constitution of India. It is accordingly quashed and set aside. The petitioner is held entitled to reinstatement in service with all consequential benefits. Learned Additional Government Counsel on being required by the Court has produced various circulars including the Circular dated 28.10.1995 issued by the Additional Director General, Police (Reorganisation), Police Headquarters, Jaipur which is addressed to all Superintendents of Police of various districts and the various Deputy Inspector Generals of Police of different ranges. It is evident from the Circular that the Home Minister of State on the floor of Legislature Assembly while replying to the demands for budgetary grants of the year 1995-96 declared for 17 increase in the strength of part time Cooks and accordingly 78 more posts were created and there monthly salary was increased to Rs.800/- per month. Subsequently, Additional Director General of Police by Circular dated 29.5.99 increased the monthly salary of such Cooks / Langaris to Rs.1,000/- per month. Yet another Circular dated 5.2.2005 has been produced, which has been issued by Additional Director General of Police on the basis of the Government order dated 3.11.2004, creating 120 more posts of part time Cooks. This indicates that the salary of the part time Cooks was in the meantime enhanced to Rs.1250/- per month. There is then the order of the Government dated 9.4.2007 which states that as per the announcement made by the Home Minister of State on the floor of the Legislature Assembly, the monthly honorarium of part time Cooks was increased from Rs.1250/- to Rs.1500/- per month with effect from 1.4.2007. The consequential Circular was issued by the Director General of Police on 23.4.07. It 18 is thus clear that the part time Cooks are presently being paid a sum of Rs.1500/- per month for the work of preparing food and refreshment for police staff and under trial prisoners. In this manner, they are actually getting a paltry sum of Rs.50/- per day, which is far less than the minimum wages fixed for the skilled labour even as per the Minimum Wages Act. Currently, such minimum wages is Rs.115/-. The respondents cannot deny that these Cooks though in the namesake referred to as part time Cooks, have been engaged for preparing food for the members of police staff, wherever they are posted and if their posting happens to be in police station having a lock up also, for the under trial prisoners as well. They also cannot deny the fact that these Cooks have been working with them for a quite long period of time and in some cases they are working for number of years or even decades. Action of the respondents in exploiting such large number of persons who are in this manner made to 19 work for nominal payment, is declared to be absolutely arbitrary, illegal and unconstitutional and hit by Article 21 which provides right to life and liberty to a citizen and also Article 23 which prohibits begar. There are in this manner thousands of such persons who are being illegally made to work as Cooks and Langaris in different Police Stations / Police Lines / Battalions of the RAC etc. on payment of a shockingly insufficient amount of wages. In the facts of this case, the system of retaining part time Cooks in different Police Stations / Police Lines of State and paying them earlier the petty sum of Rs.200, 150 and Rs.100 and now Rs.1500/- per month cannot at all be justified and is declared to be absolutely arbitrary, illegal and unconstitutional and requiring such employees to decide the duties of the Cooks / Langaris for nominal payment as aforenoted for preparing food of the Police Staff and under trial prisoners is declared to be absolutely arbitrary, illegal and 20 violative of Articles 14, 16, 21, 23 and 39(d) of the Constitution of India. In view of above discussion, the respondents are directed to pay to all such part time Cooks or Langaris serving with them, minimum of the regular pay scale of the concerned post and are further directed to regularise all such Cooks or Langaris, who have completed 10 years of service in terms of the direction of Supreme Court in Secretary, State of Karnataka vs. Uma Devi- (2006) 4 SCC page 1 contained in para 53 of the judgement and not to dispense with their service only because they are now required to be paid minimum of the regular pay scale and not to replace them by another set of ad hoc employees engaged on temporary basis. Compliance of the judgment be made within a period of six months from the date its copy is produced before the respondents. (Mohammad Rafiq),J. RS/ 21 22