Central Administrative Tribunal - Allahabad
Bhaskar Nath Tiwari vs Post Up Circle on 21 May, 2025
M.A./2671/2024 in Diary No.3417/2024
(Reserved on 19.05.2025)
Central Administrative Tribunal, Allahabad
Misc. Delay Condonation Application No.2671 of 2024
in Original Application bearing Diary No.3417 of 2024
st
Pronounced on this the 21 Day of May, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Bhaskar Nath Tiwari, aged about 63 years, Son of Late Ram Udit Tiwari,
Resident of 849B, Ramanand Nagar, Allahpur, Prayagraj.
...........Applicant
By Advocate: Shri Ashok Kumar Shukla
Versus
1. Union of India through the Secretary, Government of India,
Ministry of Communication, Department of Posts, Dak Bhawan,
Sansad Marg, New Delhi-110001.
2. Director General, Department of Posts, Dak Bhawan, Sansad
Marg, New Delhi-110001.
3. Chief Post Master General, U.P. Circle, Lucknow-226001.
4. Post Master General, Prayagraj Region, Prayagraj.
5. Senior Superintendent of Post Offices, Prayagraj Division,
Prayagraj-211001.
...Respondents
By Advocate: Shri Chakrapani Vatsyayan
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Heard learned counsel for the parties on M.A./2671/2024 (Delay Condonation Application).
2. Present Original Application has been filed seeking the following relief:
"(i) This Hon'ble Tribunal may be pleased to quash the impugned order dated 12.05.2011 passed by respondent no.5 so far as the case of applicant is concerned.
(ii) This Hon'ble Tribunal may be pleased to give order/direction for promotion of BCR to the applicant since 03.11.2007.
Digitally MADHU signed by KUMARI MADHU Page 1 of 5 KUMARI M.A./2671/2024 in Diary No.3417/2024
(iii) This Hon'ble Tribunal may be pleased to direct the respondents to refix the pay, pension and pensionary benefits and provide arrears of the pay, pension and pensionary benefits along with interest @ 10% per annum from the date when it became due to the date of actual payment.
(iv) This Hon'ble Tribunal may be pleased to give direction to the respondents to comply with the order of this Hon'ble Court within a stipulated period of time which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(v) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
(vi) Award the costs of the original application in favour of the applicant."
3. To state briefly, the applicant herein is challenging the impugned order of respondent no.5 dated 12.05.2011 through which the applicant has been given MACP-II since 01.07.2010 whereas his promotion under BCR is stated to be due since 03.11.2007 on completing 26 years of service in the Postal Department.
4. Submission of learned counsel for the applicant is that the applicant has been undergoing a recurring pecuniary loss since 03.11.2007 up to his retirement on 03.11.2021 and even after his retirement the loss is continuing. The applicant also gave a representation on 29.02.2012 immediately after the cause of action arose but the respondent no.4 only responded after a long delay on 14.08.2020 and 06.02.2023 and respondent no.5 who issued the impugned order never responded at all. He argues that his case is covered under the judgement of Hon'ble Apex Court in the case of M.R. Gupta vs. Union of India and others [1996 AIR 669] decided on 21.08.1995, and he also referred to the judgment of the Hon'ble Apex Court in the case of Tarsem Sing vs. UOI & Ors [AIRONLINE 2008 SC 68] decided on 13.08.2008. Thus, he prayed that since the cause of action is recurring in nature, the delay occurred in filing the O.A. may be condoned and the O.A. may be deemed to have been filed within the limitation period.
5. Learned counsel for the respondents opposed the prayer made by learned counsel for the applicant and argued that the present Digitally MADHU signed by KUMARI MADHU Page 2 of 5 KUMARI M.A./2671/2024 in Diary No.3417/2024 Original Application has been filed after an inordinate delay of 13 years and no reasonable explanation has been given by the applicant for delay in filing the present Original Application and as such the Original Application is liable to be dismissed on the ground of delay and latches.
6. We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.
7. M.R. Gupta vs. Union of India and others (supra) contains the following observation by the Hon'ble Apex Court:
"Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
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 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 rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself Digitally MADHU signed by KUMARI MADHU Page 3 of 5 KUMARI M.A./2671/2024 in Diary No.3417/2024 subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Others vs. Mattapalli Raju and Others, AIR 1950 Federal Court 1)."
8. Tarsem Sing vs. UOI & Ors [AIRONLINE 2008 SC 68] decided on 13.08.2008 has made reference to the judgment in the case of M.R. Gupta (supra). Hon'ble Apex Court in the case of Tarsem Singh (supra) has held as under:
"5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
9. The relief sought by the applicant in this matter is to quash the impugned order dated 12.05.2011 which is regarding second financial upgradation under MACP only with respect to himself and has sought refixation of his pay and pension. The financial loss occurring to the applicant with respect to his claim is a continuing cause. Thus, considering the fact that the cause of action is recurring in nature and keeping in view the case laws cited above, the Delay Condonation Application is liable to be allowed in order to decide the matter on merit.
10. Accordingly, M.A./2671/2024 (Delay Condonation Application) is allowed. Delay occurred in filing the O.A. is hereby condoned Digitally MADHU signed by KUMARI MADHU Page 4 of 5 KUMARI M.A./2671/2024 in Diary No.3417/2024 and the O.A. is deemed to have been filed within the limitation period. Office is directed to allot a regular number to the O.A.
11. The matter is admitted.
12. A time of six weeks is allowed to file the counter affidavit.
Rejoinder, if any, may be filed within two weeks thereafter.
13. List this matter on 11.08.2025 before the Registrar's Court for completion of pleadings.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
Digitally
MADHU signed by
KUMARI MADHU Page 5 of 5
KUMARI