KUTCH 'WATER WOMAN' WINS 30-YR LEGAL BATTLE IN SUPREME COURT, GETS REGULARISED AS GROUP-D STAFFER

In a recent order, the Supreme Court finally put an end to the 30-year-long wait of a 'water woman' from Gujarat's Kutch district to become a regularised government employee in the Group ‘D’ cadre just the same as a 'Safai Karamchari' in the Posts and Telegraphs Department.

In January, 2003, Ushaben Joshi, a contingency worker with the Post Office in Kutch, approached the authorities concerned, requesting to consider her case for regularisation and to grant her a temporary status in the Group ‘D’ cadre. 

She has served as a ‘water woman’ in the post office since February 1986. She demanded regularisation after the same was granted to a woman safai karamchari in 1991 by the Posts and Telegraphs Department. Another lady namely, K.M. Vaghela joined services in the same office as a ‘Safai Karamchari’ in the year 1991. Vaghela was regularised, for serving as a sanitation worker, but Joshi was denied the same, saying she only served for four hours a day as a casual labour, whereas the criteria to become a regularised worker was to serve at least five hours a day. She apparently missed the criteria by one hour. And then started her long quest for justice.

Ushaben Joshi's Long Legal Battle To Become A Regularised Government Employee

Both Joshi and Vaghela were performing duties as contingency workers. But, after facing discrimination and having continuously served in the Posts and Telegraphs Department for more than sixteen years, Joshi submitted a representation dated 27th January, 2003 to the concerned authorities, requesting to consider her case for regularisation and to grant her a temporary status in the Group ‘D’ cadre in terms of the Supreme Court judgment in the case of Daily Rated Casual Labour v. Union of India1.

The departmental authority rejected her representation on 31st January, 2023. Joshi then approached the CAT, seeking a direction to her department to regularise her in the Group ‘D’ post with consequential benefits. The CAT disposed of her application, directing the department to consider her 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. The circular clarified that there should be no engagement of fresh casual labourers.

Pursuant to the CAT’s order, the appellant filed a representation to the concerned authorities. However, in December 2004, the authorities rejected her plea, observing that she 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 her, and that there were no rules or instructions pertaining to the Posts and Telegraph Department covering her case.

Being aggrieved by the aforesaid decision, Ushaben approached the Gujarat High Court. But, she had to withdraw, as the decision needed to be challenged in CAT.  Accordingly, Ushaben filed a fresh application before the CAT, seeking the relief of grant of temporary status and absorption in terms of the scheme framed pursuant to the Supreme Court Judgment.

In 2016, the CAT rejected her application. She then filed a Review Application before the CAT, which too came to be rejected by CAT on the ground that the same was not maintainable.

In 2018, being aggrieved, she moved the Gujarat High Court with a prayer to mandate the department to regularise and grant the minimum of pay scale to her with permissible allowances payable to Class IV employees of the respondent-Department, with consequential benefits including arrears of pay with interest.

In April 2018, the High Court dismissed her appeal observing that she was a contingency paid part-time ‘water woman’ working only for four hours a day. The High Court further held that her claim that she was working full-time was not established and proved, and thus, she was not entitled to the relief. Following the high court's dismissal, Ushaben moved the Supreme Court.

Supreme Court Relief For Ushaben:

A bench of justices Hima Kohli and Sandeep Mehta heard the case and found that the depratment differentiated between two similar employees. The court ruled that the order of Ushaben's regularisation will be effective from the date on which, K.M. Vaghela was regularised with all consequential benefits. The top court further directed the department to comply with its order within three months.

Ushaben's counsel told the Supreme Court that she has continued to serve the Department as a water woman for a period of more than 30 years without any break. The Department has regularised the services of one K.M. Vaghela, an employee performing duties similar to her, when Vaghela joined the services in the office of Superintendent of Post Offices, Kutch, six years after her.

"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 regularised, manifestly the appellant has been discriminated visa-vis Smt. K.M. Vaghela and hence, she is entitled to the same

relief," Ushaben's lawyer argued in court.

The counsel appearing for the department against Ushaben said services of K.M. Vaghela was regularised in compliance with the direction given by CAT vide order dated 28th July, 2015.

However, Ushaben's lawyer told the court that the 2015 CAT order in the case of K.M. Vaghela gave no such mandate that the department should regularise her. The only direction of the CAT was to consider her case. The department took an independent decision uninfluenced by the direction given by the CAT to regularise the services of K.M. Vaghela.

It was argued 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.

The apex court ruled in Ushaben's favour and observed that after going through the record, it is evident that in the case of K.M. Vaghela, the CAT had simply directed the 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 Department to regularise her services.

The court further observed that the department has not indicated any difference between the nature of duties or the hours of work being performed by K.M. Vaghela and Ushaben, in the affidavit filed before it.

"Indisputably, the appellant continuously served the Department 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," he top court's order read.

The top court noted that 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.