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Rajasthan High Court · body

2022 DIGILAW 2687 (RAJ)

Kusum v. Union Of India

2022-11-02

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT 1. Briefly stated facts of the case are that applicant Shri Sunny Lal, present writ petitioner filed an Original Application (O.A.) No. 290/00071/2019 along with Miscellaneous Application (M.A.) No. 290/00071/2019 before the learned Central Administrative Tribunal Bench, Jodhpur (hereinafter referred to as 'Tribunal'), praying for following reliefs: i. "By an appropriate order or direction of this Hon'ble Tribunal, this Original Application filed by the applicant, may kindly be allowed. ii. By an appropriate order or direction of this Hon'ble Tribunal, the respondents, may kindly be directed to regularize services of the applicant in same manner as was done in the case of Vijesh Kumar, who had been given the benefit of regularization and given appointment on permanent post in regular pay scale in terms of directions of this Hon'ble Tribunal and consequently the respondents may kindly be directed to make payment of arrears, in consequence to regularization of service, with all consequential service benefits, at par with Vijest Kumar. iii. By an appropriate order or direction of this Hon'ble Tribunal, the respondents may very kindly be directed to grant full time status to applicant and to convert his status as permanent/temporary status of the Class-D post with regular pay scale and to regularize his services on (sic) on which he is working with all consequential service benefits, by taking into account his long 28 years of service. iv. Any other relief which this Hon'ble Tribunal deems suit and proper in favour of the applicants may be passed." 2. During the pendency of the present writ petition, Shri Sunny Lal (hereinafter referred to as 'deceased employee') passed away on 24.01.2020. The legal heirs of the deceased employee/original applicant were taken on record vide order dated 21.09.2020 passed by co-ordinate Bench of this Court. 3. The deceased employee was working as part-time Casual Labour (Sweeper) in the office of Sub-Post Master, Shastri Nagar, Jodhpur since 1984. The deceased employee was paid consolidated salary, fixed by the respondent-department for part-time Group-D employees. The O.A. along with M.A. referred to above was preferred by the deceased employee before Tribunal praying for regularization of services along with grant of regular pay scale as had been accorded to one Shri Vijesh Kumar in O.A. No. 125/2005 (Vijesh Kumar v. Union of India) vide order dated 15.02.2006. The O.A. along with M.A. referred to above was preferred by the deceased employee before Tribunal praying for regularization of services along with grant of regular pay scale as had been accorded to one Shri Vijesh Kumar in O.A. No. 125/2005 (Vijesh Kumar v. Union of India) vide order dated 15.02.2006. The O.A. filed by the deceased employee came to be dismissed by the Tribunal vide order dated 23.09.2019 on the ground of limitation holding that regularization was sought by the deceased employee only in the year 2019 after having worked with the respondent-department since 1984. Since, the deceased employee had acquiesced to the position held for long time and did not raise claim for regularization, no direction could be issued in his favour. The learned Tribunal further held that no parity could be drawn between the deceased employee and Shri Vijesh Kumar since the decision in the case of Vijesh Kumar (supra) was rendered in 2006 which attained finality in the year 2009 with the dismissal of writ petition filed by the department challenging the order passed by the learned Tribunal. 4. Having heard both the sides, we have no hesitation in holding that learned Tribunal was not justified in dismissing the O.A. as well as M.A. filed by the deceased employee. 5. In our considered opinion, the deceased employee's prayer for regularization of services and grant of regular pay scale was a case of persistent and continuous wrongdoing of the respondent-department giving rise to a recurring cause of action each month. So long as the petitioner was in service, a fresh cause arose every month when he was paid consolidated salary as part time Casual Labour (Sweeper). 6. The Hon'ble Supreme Court in the case of M.R. Gupta v. Union of India reported in 1995 (5) SCC 628 held as under:- "6. The Tribunal misdirected itself when it treated the appellant's claim as "one time action" meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind." 7. Similarly, in State of Punjab v. Jagjit Singh, reported in (2017) 1 SCC 148 , Hon'ble the Apex Court held that for application of the principle of equal pay for equal work in relation to temporary employees (Daily Wages employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires determination is whether the concerned employee was rendering similar duties and responsibilities, as were being discharged by regular employees holding the same posts. 8. Learned counsel for the respondents placed reliance on the following judgments:- i. State of Karnataka & Ors. v. S.M. Kotrayya & Ors. reported in (1996) 6 SCC 267 ; ii. Surja Ram v. State of Rajasthan reported in (1996) 6 SCC 271 ; iii. State of Orissa & Anr. v. Mamata Mohanty reported in (2011) 3 SCC 436 ; 9. The decisions cited by learned counsel for the respondents has no application in the present case since the deceased employee was working as a Casual Labour (Sweeper) in the office of Sub-Post Master Shastri Nagar, Jodhpur since 1984 on a consolidated salary till he was alive. Therefore, this was not a case of one time action rather, the claim for regularization and pay parity on the basis of the principle of "Equal Pay for Equal Work" gave rise to a fresh cause of action each month in favour of the deceased employee. 10. In view of aforesaid discussion, the impugned order dated 23.09.2019 is set aside and the matter is remanded to the learned Central Administrative Tribunal, Jodhpur Bench for consideration of O.A. No. 290/00071/2019 along with M.A. No. 290/00071/2019 afresh on merits in accordance with law. 10. In view of aforesaid discussion, the impugned order dated 23.09.2019 is set aside and the matter is remanded to the learned Central Administrative Tribunal, Jodhpur Bench for consideration of O.A. No. 290/00071/2019 along with M.A. No. 290/00071/2019 afresh on merits in accordance with law. It is however made clear that the merits of the case be examined without being influenced by the observations made in the present order. 11. The instant writ petition stands allowed in above terms. No order as to costs.