Allowed

Sunny v. Union of India

Rajasthan HC2 Nov 2022CW/141/2020

Case brief

AI extract

What is this about?

High Court held that a claim for regularization and equal pay for equal work arises from persistent wrongdoing, creating a fresh cause of action monthly. The Tribunal erred in dismissing the claim due to limitation, and the matter was remanded to be reconsidered on merits.

What did the court decide?

Impugned order of Tribunal dated 23.09.2019 set aside and matter remanded to Central Administrative Tribunal, Jodhpur Bench for reconsideration on merits.

Sunny Vs Union of India — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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D.B. Civil Writ Petition No. 141/2020

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LRs of Sunny:-

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

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----Petitioner

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Versus

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

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

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

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

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

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----Respondents

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

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

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Order

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02/11/2022

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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:

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i. "By an appropriate order or direction of this Hon'ble Tribunal, this Original Application filed by the applicant, may kindly be allowed.

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(2 of 5)

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[CW-141/2020]

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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.

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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.

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iv. Any other relief which this Hon'ble Tribunal deems jsut and proper in favour of the applicants may be passed. "

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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.

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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 parttime 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

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(3 of 5)

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[CW-141/2020]

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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.

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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.

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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 respondentdepartment 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).

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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:-

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“ 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

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(4 of 5)

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[CW-141/2020]

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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.”

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Similarly, in State of Punjab Vs. Jagjit Singh , reported in

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(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.

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Learned counsel for the respondents placed reliance on the

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following judgments:-

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i. State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors. reported in (1996) 6 SCC 267;

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ii. Surja Ram Vs. State of Rajasthan reported in (1996) 6 SCC 271;

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iii. State of Orissa & Anr. Vs. Mamata Mohanty reported in (2011) 3 SCC 436;

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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

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

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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.

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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.

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The instant writ petition stands allowed in above terms.

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No order as to costs.

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

Sunny v. Union of India

Case brief

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What did the court decide?

Sunny v. Union of India

Case brief

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