Ushaben Joshi vs Union Of India

2024 INSC 624 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). OF 2024 (Arising out of SLP(Civil) No(s). 6427 of 2019)

USHABEN JOSHI .…APPELLANT(S)

VERSUS

UNION OF INDIA AND OTHERS ….RESPONDENT(S)

ORDER

1. Heard.

2. Leave granted.

3. This appeal takes exception to the judgment dated 5th April,

2018 passed by learned Division Bench of the High Court of

Gujarat, dismissing the Special Civil Application No. 5115 of 2018

preferred by the appellant and affirming the order dated 29th June,

2016 passed by the Central Administrative Tribunal,

Ahmedabad(hereinafter referred to as the ‘CAT’), rejecting the

Original Application No. 50 of 2012 preferred by the appellant with Signature Not Verified

a prayer that the respondents be directed to regularise her services Digitally signed by KAVITA PAHUJA Date: 2024.08.23 15:41:47 IST Reason:

in the Group ‘D’ post.

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4. As per admitted facts obtaining from record, the appellant

was engaged as a ‘water woman’ in the office of respondent No. 3-

Superintendent of Post Offices, Kutch Division, Bhuj, in February,

1986. Another lady namely, Smt. K.M. Vaghela joined services in

the same office as a ‘Safai Karamchari’ in the year 1991.

Indisputably, the appellant as well as Smt. Vaghela were both

performing duties as contingency workers. Having continuously

served in the Posts and Telegraphs Department for more than

sixteen years, the appellant submitted a representation dated 27th

January, 2003 to the concerned authorities, requesting to consider

her case for regularization and to grant her a temporary status in

the Group ‘D’ cadre in terms of the judgment of this Court in the

case of Daily Rated Casual Labour v. Union of India1. The

departmental authority communicated the rejection of the said

representation to the appellant vide letter dated 31st January,

2023 upon which the appellant approached the CAT by filing

Original Application No. 530 of 2003, seeking a direction upon the

respondents to regularise the appellant in the Group ‘D’ post with

consequential benefits. The CAT disposed of the Original

Application No. 530 of 2003 vide order dated 20th October, 2004,

1 (1988) 1 SCC 122

2 directing the respondent-authorities to consider the appellant’s

case for conversion to a full time employee in terms of the circular

issued in the year 1992 within a period of three months. The

circular dated 16th September, 1992 provided a scheme for

regularisation of the part-time labourers as ‘full time’, with a

stipulation that if part-time casual labourers are working for five

hours or more, it may be examined as to whether they can be made

full-time by readjustment or a combination of duties. However,

there should be no engagement of fresh casual labourers.

5. Pursuant to the CAT’s order, the appellant filed a

representation to the concerned authorities. However, the

authorities rejected the representation vide communication dated

29th December, 2004, observing that the appellant was a

contingency paid part-time ‘water woman’ doing four hours of work

each day. She was being paid Rs.1796/- per month as a

contingency allowance calculated on the basis of the number of

working hours and thus, she was not entitled to any benefit under

the scheme/circular. It was further observed that neither the 1999

scheme, which was applicable to the Department of

Telecommunication, nor the 1984 circular, applied to the

3 appellant, and that there were no rules or instructions pertaining

to the Posts and Telegraph Department covering her case.

6. Being aggrieved by the aforesaid communication, the

appellant preferred Special Civil Application No. 9398 of 2005 in

the High Court which, however, was withdrawn with a liberty to

challenge the communication dated 29th December, 2004 before

the CAT. Accordingly, the appellant filed a fresh Original

Application No. 50 of 2012 before the CAT, seeking the relief of

grant of temporary status and absorption in terms of the scheme

framed pursuant to the judgment of this Court in the case of Daily

Rated Casual Labour(supra). The CAT rejected the Original

Application filed by the appellant vide judgment dated 29th June,

2016. The appellant then filed a Review Application No. 11 of 2005

before the CAT, which too came to be rejected by CAT on the

ground that the same was not maintainable.

7. Being aggrieved, the appellant filed Civil Application No. 5115

of 2018 before the High Court of Gujarat with a prayer to mandate

the respondents to regularise and grant the minimum of pay scale

to the appellant with permissible allowances payable to Class IV

employees of the respondent-Department, with consequential

benefits including arrears of pay with interest. The High Court

4 dismissed the said Special Civil Application vide order dated 5th

April, 2018, observing that the writ petitioner i.e., the appellant

herein, was a contingency paid part-time ‘water woman’ working

only for four hours a day. The High Court further held that the

claim of the appellant that she was working full-time has not been

established and proved, and thus, the appellant was not entitled

to the relief claimed for by virtue of the judgment in the case of

Secretary, State of Karnataka and Ors. v. Uma Devi (3) (2006)

4 SCC 1, and Union of India and Ors. v. A.S. Pillai and Others

(2010) 13 SCC 448. Being aggrieved, the appellant has

approached this Court by way of this appeal by special leave.

8. Learned counsel for the appellant, vehemently and fervently

contended before us that the appellant has continued to serve the

respondent-Department as a water woman for a period of more

than 30 years without any break. The Department has regularised

the services of one Smt. K.M. Vaghela, an employee performing

duties similar to the appellant, who joined the services in the office

of Superintendent of Post Offices, Kutch Division, Bhuj six years

after the appellant, i.e. in the year 1991. Indisputably, the

appellant as well as Smt. K.M. Vaghela were contingency workers,

and since a person much junior in length of service has been

5 regularised, manifestly the appellant has been discriminated vis-

a-vis Smt. K.M. Vaghela and hence, she is entitled to the same

relief. In order to buttress this contention, the appellant has filed

a rejoinder affidavit highlighting the contents of para 15 of the

reply affidavit dated 9th May, 2024 filed by the respondents. The

said para of the reply affidavit filed by respondents is quoted

hereinbelow for ready reference: -

“Para 15. It is respectfully submitted that in compliance of the order dated 28.07.2015 passed by the Hon’ble CAT in OA No. 51/2013, Smt. K.M. Vaghela was selected as MTS during DPC whereas the case of Smt. Ushaben Joshi was rejected by both the Hon’ble CAT as well as by the Hon’ble High Court. It is therefore respectfully submitted that the present petitioner has not been discriminated by the respondents. It is further submitted that the petitioner does not fall within the purview of Casual Labour as well as does not(sic) fulfil the conditions as required under Recruitment Rules.”

9. Learned counsel submitted that the bare perusal of the order

dated 28th July, 2015 passed by CAT in the case of Smt. K.M.

Vaghela would make it clear that no such mandate was given by

the Tribunal that the respondents should regularise the services

of Smt. K.M. Vaghela. The only direction of the CAT was to

consider her case. The DPC took an independent decision

uninfluenced by the direction given by the CAT to regularise the

services of Smt. K.M. Vaghela.

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10. Learned counsel for the appellant, submitted that it is clear

that the Department has discriminated between two similarly

placed employees without any justification, inasmuch as Smt.

K.M. Vaghela, whose services were regularised, joined the

Department as a contingency-paid part-time ‘Safai Karamchari’

only in the year 1991. It was urged by the learned counsel that

the appellant having served in the Department for a period of more

than 30 years is entitled for the relief prayed for.

11. Per contra, learned counsel for the respondents, vehemently

and fervently opposed the submissions advanced by learned

counsel for the appellant. He urged that Smt. K.M. Vaghela was

engaged as Water/Sweeper woman at the Superintendent of Post

Offices, Kutch, Bhuj and that her services were confirmed in

compliance of the direction given by CAT vide order dated 28th

July, 2015.

12. We have considered the submissions advanced at bar and

have gone through the material available on record.

13. The central issue requiring adjudication in the matter is as

to whether the respondents have discriminated between two

similarly placed employees.

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14. The fulcrum of the respondents’ case for justifying the

decision to regularise the services of Smt. K.M. Vaghela is that the

said decision was taken in purported compliance of the order

passed by CAT, whereas the appellant did not have any such order

in her favour.

15. On going through the record, it is evident that in the case of

Smt. K.M. Vaghela, the CAT vide order dated 28th July, 2015, had

simply directed the respondent-Department to consider the case of

Smt. K.M. Vaghela for appointment to the post of Multi-Tasking

Staff(in short ‘MTS’). The CAT never mandated the respondent-

Department to regularise her services. A careful perusal of Minutes

of Meeting of DPC dated 18th October, 2016 held regarding direct

recruitment to the cadre of MTS for the year 2016-17 makes it clear

that Smt. K.M. Vaghela was found eligible and was

selected/appointed as MTS without being influenced by the order

passed by the CAT. The relevant extracts from the minutes of

meeting dated 18th October, 2016 are reproduced hereinbelow: -

“ DPC has gone through all relevant records and found that Smt K M Vaghela contingent paid worker o/o SPOs Bhuj is found eligible after giving age relaxation vide Para 8 of GI Dept. of Post OM No. 51016/2/90/Estt. (c) dated 10-09-1993 and selected as MTS as detailed below.

8 S.No. Name of Category Edu. Date of Date of Rema casual Quali. Birth entry in rks labourers the Deptt. 1. Smt. KM OC III 01-06-1964 Jan- - Vaghela 1991 Water/sweep er woman DO Bhuj ”

16. Evidently, the decision to regularise the services of Smt. K.M.

Vaghela and in appointing her as an MTS was an independent

decision of respondent-Department uninfluenced by the CAT’s

order. Hence, the argument advanced by the learned counsel for

the appellant that she has been discriminated vis-à-vis Smt. K.M.

Vaghela who has been given the benefit of regularization is

substantiated and established from record.

17. The respondents have not indicated anything in the affidavit

filed in pursuance of the order dated 27th February, 2024, that the

nature of duties or the hours of work being performed by Smt. K.M.

Vaghela were any different from that of the appellant. Thus, the

defence taken by the respondents for their decision not to confirm

the appellant in services that she was only performing duties as a

contingency worker(water woman) for four hours a day is not

substantiated from any acceptable material on record.

Indisputably, the appellant continuously served the Department 9 for more than three decades as a contingency ‘water woman’.

Keeping in view the fact that an employee similarly placed but

inducted in service after nearly six years from the date of

employment of the appellant with the respondent-Department has

been conferred the benefits of confirmation in service by way of

appointment to the post of MTS, the appellant is entitled to claim

the same benefits.

18. The prevailing circulars applicable to the Posts and

Telegraphs Department mandate that a temporary employee who

has worked in the Department continuously for more than 240

days in the preceding 12 months would be entitled to claim the

relief of regularisation under the extant rules and regulations.

19. In view of the foregoing discussion, the impugned orders are

set aside. The respondents are directed to treat the appellant at

par with Smt. K.M. Vaghela and shall pass the order of

regularisation/appointment as MTS in favour of the appellant, on

similar terms as was done in the case of Smt. K.M. Vaghela. The

order of regularisation will be effective from the date on which,

Smt. K.M. Vaghela was appointed as MTS with all consequential

benefits. Compliance of this order shall be effected within a period

of three months from the date of this order.

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20. The appeal stands allowed accordingly.

21. Pending application(s), if any, shall stand disposed of.

………………….……….J. (HIMA KOHLI)

………………………….J. (SANDEEP MEHTA) New Delhi;

August 02, 2024

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