'Similarly Placed Employees Discriminated' : Supreme Court Directs Regularization Of Worker Who Served For 30 Years

The Supreme Court recently granted the relief of regularization to a woman engaged as "water woman" (sweeper) with the Posts and Telegraph Department, Gujarat, who served the Department for over 30 years but was not regularized, even though another similarly placed woman employee was conferred the benefit.

Opining that the Department discriminated between two similarly placed employees, a bench of Justices Hima Kohli and Sandeep Mehta ordered:

"The respondents ... 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."

Factual Background

Briefly put, the appellant was engaged as a "Water Woman" in the office of Superintendent of Post Offices, Kutch Division, Bhuj, in February, 1986. After continuously working in the Department for 16 years, she made a representation, requesting consideration of her case for regularization and grant of temporary status in the Group 'D' cadre (in terms of the Supreme Court judgment in Daily Rated Casual Labour v. Union of India).

However, the Department rejected the appellant's prayer. Aggrieved, she approached the Central Administrative Tribunal. The CAT disposed of her plea with a direction to the respondent-authorities to consider her case for conversion to a full time employee in terms of a 1992 circular within a period of 3 months.

This circular provided a scheme for regularisation of part-time labourers as "full time". If part-time casual labourers were working for five hours or more, it could be examined as to whether they could be made full-time by readjustment or a combination of duties.

The appellant's fresh plea was rejected by the Department with an observation that she was a contingency paid part-time 'water woman' doing four hours of work each day, who was being paid per month on the basis of the number of working hours.

After this, the appellant approached the CAT again, seeking relief of absorption in terms of the scheme framed pursuant to Daily Rated Casual Labour (supra). The CAT, however, rejected her application. The High Court of Gujarat also denied her relief, noting that the she was a contingency paid part-time 'water woman' working only for four hours a day. Ultimately, the appellant approached the Supreme Court.

Issue

Did the Department discriminate between two similarly placed employees?

Submissions of the parties

On behalf of the appellant, it was submitted that the Department regularised the services of one Smt. K.M. Vaghela, a similarly placed employee in the office of Superintendent of Post Offices, Kutch Division, Bhuj, who joined in 1991 (6 years after the appellant). As such, the appellant had been discriminated against and was entitled to the same relief.

The Department, on the other hand, claimed that the services of Smt. K.M. Vaghela were confirmed in compliance of a direction given by the CAT, whereas, the appellant did not have any such order in her favor.

Court Observations

On perusing the material, the Court was of the view that in the case of Smt. K.M. Vaghela, the CAT had simply directed the Department to consider the case for appointment to the post of Multi-Tasking Staff and the Department was not mandated to regularise her services. In fact, Smt. K.M. Vaghela was found eligible and appointed as MTS without being influenced by the CAT order.

"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", the Court said.

It was further noted that the Department had not indicated anything to the effect 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. As such, the Department's contention that the appellant was only performing duties as a contingency worker (water woman) for four hours a day was not substantiated.

The Court also observed that as per the prevailing circulars applicable to the Posts and Telegraphs Department, a temporary employee who had worked in the Department continuously for more than 240 days in the preceding 12 months was entitled to claim the relief of regularisation.

Conclusion

Accordingly, the appellant was held entitled to the claimed benefit and her appeal allowed. "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", the Court said.

Case Title: USHABEN JOSHI VERSUS UNION OF INDIA AND OTHERS, SLP(C) No. 6427/2019

Citation : 2024 LiveLaw (SC) 612

Click here to read/download judgment