Sunny vs Union Of India
2022 Latest Caselaw 12849 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 141/2020

LRs of Sunny:-

Smt Kusum W/o Late Shri Sunny, aged 48 yeas, caste-Harijan, R/o Mahadev Colony, Kabir Nagar, Soorsagar Road, Jodhpur, Rajasthan.

----Petitioner Versus

1. Union Of India, Through The Secretary, Ministry Of Communication And It, Department Of Posts, Government Of India, Sanchar Bhawan, New Delhi.

2. The Post Master General, Rajasthan Circle, Jaipur, Rajasthan.

3. The Post Master General, Rajasthan Western Region, Jodhpur-342001.

4. The Senior Superintendent Of Post Offices, Jodhpur Division, Jodhpur-342001.

5. The Sub Post Master (Spm), Office Of S.p.m., Shastri Nagar, Jodhpur, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Satya Prakash Sharma. For Respondent(s) : Mr. Bhanu Pratap Bohra.

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

02/11/2022

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.

(2 of 5) [CW-141/2020]

ii. By an appropriate order or direction of this Hon'ble Tribunal, the respondents, may kindly be directed to regularize services of teh applicant in same manner as was done in the case of Vijesh Kumar, who had been given teh benefit of regularization and given appointment on permanent post in regular pay scale in termso f directions of this Honb'el Tribunal and consequenly the respondents may kidnly be directed to make paymetn 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 permenent/temporary status of the Class-D post with regular pay scale and to regularize his services on teh psot 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 jsut and proper in favour of the applicants may be passed. "

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.

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 Vs. 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

(3 of 5) [CW-141/2020]

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.

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.

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).

The Hon'ble Supreme Court in the case of M.R. Gupta Vs.

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

(4 of 5) [CW-141/2020]

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."

Similarly, in State of Punjab Vs. 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.

Learned counsel for the respondents placed reliance on the

following judgments:-

i. State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors.

reported in (1996) 6 SCC 267;

ii. Surja Ram Vs. State of Rajasthan reported in (1996) 6

SCC 271;

iii. State of Orissa & Anr. Vs. Mamata Mohanty reported in

(2011) 3 SCC 436;

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

(5 of 5) [CW-141/2020]

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.

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.

The instant writ petition stands allowed in above terms.

No order as to costs.

(KULDEEP MATHUR),J (SANDEEP MEHTA),J 54-Prashant/-

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