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2022 Supreme(Raj) 1121
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Sandeep Mehta, Kuldeep Mathur, JJ.
Kusum – Appellant
Versus
Union Of India & Ors. – Respondents
D.B. Civil Writ Petition No. 141/2020
Decided On : 02-11-2022
Satya Prakash Sharma, Advocate., for the Appellant
Bhanu Pratap Bohra, Advocate., for the Respondents
The main legal point established in the judgment is the application of the principle of equal pay for equal work to temporary employees and the recognition of a recurring cause of action for the claim of regularization and pay parity.
Headnote:
Casual Labour - Regularization of Services - Equal Pay for Equal Work - [M.R. Gupta v. Union of India (1995) 5 SCC 628, State of Punjab v. Jagjit Singh (2017) 1 SCC 148] - The court held that 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. The right to be paid the correct salary throughout the tenure is akin to the right of redemption and subsists so long as the employment subsists. The principle of equal pay for equal work applies to temporary employees, and the sole factor for determination is whether the concerned employee was rendering similar duties and responsibilities as regular employees holding the same posts.
Fact of the Case:
The deceased employee, a part-time Casual Labour (Sweeper), sought regularization of services and grant of regular pay scale. The Tribunal dismissed the application on the ground of limitation, stating that the deceased employee had acquiesced to the position held for a long time and did not raise a claim for regularization.
Finding of the Court:
The court found that 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. The court held that the Tribunal was not justified in dismissing the application.
Issues: The issues involved the deceased employee's claim for regularization of services and grant of regular pay scale, the application of the principle of equal pay for equal work to temporary employees, and the dismissal of the application by the Tribunal on the ground of limitation.
Ratio Decidendi: The court held that the deceased employee's 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. The right to be paid the correct salary throughout the tenure is akin to the right of redemption and subsists so long as the employment subsists. The principle of equal pay for equal work applies to temporary employees, and the sole factor for determination is whether the concerned employee was rendering similar duties and responsibilities as regular employees holding the same posts.
Final Decision: The impugned order was set aside, and the matter was remanded to the Tribunal for consideration of the application afresh on merits in accordance with the law. The instant writ petition was allowed in the above terms with no order as to costs.
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. 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 cla
