Punjab-Haryana High Court
Kesar Singh vs Pepsu Road Transport Corporation And ... on 12 November, 2024
Neutral Citation No:=2024:PHHC:147615
CWP No.25608 of 2021
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.25608 of 2021
Date of decision: 12.11.2024
Kesar Singh
....Petitioner
Versus
Pepsu Road Transport Corporation and another
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Sunny Singla, Advocate
for the petitioner.
Mr. Rakesh Roy, Advocate
for Mr. Abhilaksh Gaind, Advocate
for the respondents.
NAMIT KUMAR J. (Oral)
1. The petitioner has invoked the writ jurisdiction of this Court by filing the present petition under Articles 226/227 of the Constitution of India, seeking a writ of certiorari for quashing various punishment orders dated 13.11.1981 (Annexure P-3), 30.05.1986 (Annexure P-4), 29.08.1986 (Annexure P-5), 29.09.1986 (Annexure P-6), 17.05.1988 (Annexure P-7) and 31.11.1989 (Annexure P-8), whereby his two annual grade increments have been stopped with cumulative effect. Further a writ of mandamus has been sought for directing the respondents to revise the pay and pension of the petitioner after releasing the benefit of annual increments, with all consequential benefits along with interest @ 18% per annum.
2. Brief facts, as have been pleaded in the present petition, are 1 of 26 ::: Downloaded on - 23-11-2024 07:51:06 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 2 that the petitioner was appointed as Conductor with the respondent -
Corporation on 03.02.1976 and retired as such on 30.09.2007, on attaining the age of superannuation. It has further been pleaded that after his retirement, the petitioner discovered that his annual increments and ACP (Assured Career Progression) increments had been withheld by the respondent - Corporation without any communication or reason, and he was not provided with any orders or a copy of his service book. To understand the basis of this action, the petitioner filed an RTI application on 24.09.2021, but did not receive satisfactory response.
Later on, the respondent - Corporation provided documents to the petitioner, including his service book, ACRs, and several orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986, 17.05.1988, and 31.11.1989 (Annexures P-3 to P-8), which revealed that withholding of the increments was done in an arbitrary and illegal manner, without issuing a show-cause notice or charge sheet as required under the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Despite the petitioner's ACRs being rated as "Average," "Above Average,"
"Good," and "Very Good," his annual increments were stopped with cumulative effect, causing him recurring financial loss. Furthermore, the ACP increments, to which the petitioner was entitled, were withheld and released later on. Hence, this writ petition.
3. Learned counsel for the petitioner submits that, upon his retirement, the petitioner came to know that his annual increments and ACP increments had been unjustifiably withheld by the respondent -
2 of 26 ::: Downloaded on - 23-11-2024 07:51:06 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 3 Corporation, without any formal communication or valid reasons and despite filing a Right to Information (RTI) application on 24.09.2021, the petitioner did not receive a satisfactory response from the respondent - Corporation. He further submits that the respondent, in its reply, provided certain documents, including the petitioner's service book, ACRs, and orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986, 17.05.1988, and 31.11.1989, however, a perusal of these documents reveal that withholding of increments was done arbitrarily and unlawfully, without issuing any show-cause notice or charge sheet to the petitioner, which is in violation of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. He further submits that the ACP increments to which the petitioner was entitled were delayed and released later on, without any explanation for causing the delay. He further submits that the action of the respondent - Corporation, including the failure to communicate the reasons for withholding the increments and not following the prescribed procedure, are in clear violation of the principles of fairness, transparency, and due process as laid down by the Hon'ble Supreme Court of India. In support of his contentions, he has placed reliance upon the judgment of the Hon'ble Supreme Court in "The State of Madhya Pradesh vs Syed Qamarali", 1967 SLR 228, "Kulwant Singh Gill vs The State of Punjab", 1991(1) RSJ 413, "Dev Dutt vs Union of India and others", 2008(3) SCT 429, "Raghubir Singh vs General Manager, Haryana Roadways, Hissar", 2014(4) SCT 262, "State of Bihar vs 3 of 26 ::: Downloaded on - 23-11-2024 07:51:06 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 4 Kameshwar Prasad Singh" and other connected cases, 2000(2) SCT 889 as well as the judgment passed by this Court in CWP No.16147 of 2023 and other connected cases, titled as "Surjit Singh vs State of Punjab and others", decided on 30.01.2024.
4. Per contra, learned counsel for the respondents has opposed the submissions made by learned counsel for the petitioner on the ground that the petitioner's claim regarding withholding of his annual increment and ACP increments is without any merit as the withholding was carried out in accordance with the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and the relevant departmental orders. He further submits that the petitioner has failed to correctly enclose the complete copies of the vernacular documents, specifically the orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986, 17.05.1988 and 31.11.1989 (Annexures P-3 to P-8) as copies of these orders annexed by the petitioner do not contain the endorsements made on the original orders. These endorsements are an integral part of the orders and are essential to fully understand the context and the respondent's actions. Lastly, he, inter alia, submits that besides other issues, there is an inordinate, gross and unexplained delay in filing the present writ petition for espousing his cause, therefore, the same is liable to be dismissed on the ground of delay and laches.
5. I have heard learned counsel for the parties and perused the record.
6. Admittedly, there is gross, inordinate and unexplained 4 of 26 ::: Downloaded on - 23-11-2024 07:51:06 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 5 delay ranging from 35 to 43 years in filing the present writ petition for redressal of his grievance as the cause of action accrued to the petitioner in the year 1981 onwards when his one increment without cumulative effect was stopped and, therefore, at this point of time the petitioner cannot be allowed to agitate the dead and stale issues. If the claim of the petitioner was genuine, he could have agitated the same in the year 1981 onwards or within some reasonable time. It would be difficult for this Court to entertain the present petition now i.e. on expiry of period of 35-43 years, which would unhesitatingly cause hardship and inconvenience to the opposite parties.
7. The Hon'ble Supreme Court in "Yunus (Baboobhai) A Hamid Padvekar vs State of Maharashtra Through its Secretary and others", 2009(2) SCT 24, while referring to the issue of delay and latches, had held as follows:-
"8. Delay or laches is one of the factors which is to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the 'Constitution'). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.
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9. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329), Sir Barnes had stated:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after 6 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 7 inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251) that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
12. In view of the aforesaid position we are not inclined to interfere in this appeal which is dismissed accordingly."
8. Further the Hon'ble Supreme Court in State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, while considering the issue regarding delay 7 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 8 and laches and referring to earlier judgments on the issue, opined that repeated representations made will not keep the issues alive. A stale or a dead issue/dispute cannot be revived even if such a representation has been decided either by the authority or by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed. Delay and laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. An order promoting a junior should normally be challenged within a period of six months or at the most in a year of such promotion. Though it is not a strict rule, the courts can always interfere even subsequent thereto, but relief to a person, who allows things to happen and then approach the court and puts forward a stale claim and try to unsettle settled matters, can certainly be refused on account of delay and laches. Any one who sleeps over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches. Relevant paragraphs from the aforesaid judgment are extracted below:
8 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 9 "13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus:-
"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of 9 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 10 action or revive a stale or dead claim."
14. XXXX XXXX XXXX XXXX
15. XXXX XXXX XXXX XXXX
16. XXXX XXXX XXXX XXXX
17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, (2011) 4 SCC 374, a three-Judge Bench of the Hon'ble Supreme Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
18. In State of T. N. vs. Seshachalam, (2007) 10 SCC 137, the Hon'ble Supreme Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:-
"... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
19. XXXX XXXX XXXX XXXX
20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Hon'ble Supreme Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should 10 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 11 be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
9. In a recent judgment by the Division Bench of this Court in "Ram Kumar vs State of Haryana and others", 2022 (3) SCT 346, while rejecting the claim of the petitioner for counting of his ad hoc service, for the purpose of seniority/pension and regularization in service on completion of 02 years as per policy, held that the petition filed by him suffered from gross, inordinate and unexplained delay in approaching the High Court. In the said judgment, it has been held as under:-
"10. What we wish to emphasize, in particular, is that services of the appellant were regularized w.e.f. 01.04.1997. And, he was assigned a specific seniority position in the cadre. Whereafter, he continued to serve the department for nearly twenty five years, before attaining the age of superannuation in January, 2022. Needless to assert that during all these years, he availed all admissible benefits, promotions, and retired as Inspector. Thus, it rather appears that institution of the petition by the appellant was speculative and an attempt to resurrect a stale and dead claim. The Supreme Court, in New Delhi Municipal Council v. Pan Singh & Ors., 2007(9) SCC 278, observed:
"15. There is another aspect of the matter which cannot be lost sight of. Respondents herein 11 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 12 filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. See Govt. of W.B. v. Tarun K. Roy And Others [(2004) 1 SCC 347], Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh And Anr. [2006 (12) SCALE 347] and Karnataka Power Corpn. Ltd. through its Chairman & Managing Director and Another v. K. Thangappan and Another [(2006) 4 SCC 322]"
11. Similarly, in Jagdish Lal & Ors. v. State of Haryana & Ors., (1997) 6 SCC 538, it was held by the Supreme Court:
"That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake up when they had the
12 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 13 impetus from Vir Pal Chauhan and Ajit Singh's ratios..................... Therefore, desperate attempts of the appellants to re-do the seniority had by them in various cadres/grades though in the same services according to 1974 Rules or 1980 Rule, are not amenable to judicial review at this belated stage...."
12. In the wake of the position as sketched out above, we are dissuaded to interfere with the impugned order and judgment rendered by the learned single Judge. The appeal being bereft of merit is, accordingly, dismissed."
10. The Co-ordinate Bench of this Court in "Prem Nath and others vs State of Punjab and others", 2018(2) SCT 687, while rejecting the claim of additional increments of acquisition of higher qualifications has held as under:-
"3. It is the case set up on behalf of the petitioners that they had all been appointed before 19.02.1979 and had even improved/acquired higher qualifications before 19.02.1979 and as such there would be no difference between the employees working with the Punjab Government, holding corresponding post and the employees like the petitioners who have worked for Punjab Privately Managed Recognised Aided Schools. It is also the assertion made by counsel representing the petitioners that their claim would be covered in terms of decision dated 02.07.2013 rendered by this Court in a bunch of writ petitions including CWP No.8083 of 1989 titled as Radha Krishan Narang and others vs. State of Punjab and others.
4. Having heard counsel for the petitioners at length, this Court is of the considered view that the claim of the petitioners would not require any consideration on merits 13 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 14 and the writ petition deserves to be dismissed on the sole ground of delay and laches.
5. Placed on record and appended at Annexure P-1 are the particulars of the petitioners. The tabulation at Annexure P-1 would show that all the petitioners stand retired on various dates between the years 1995 to 2012. Out of 32 petitioners in all, 22 petitioners superannuated more than 10 years back.
6. There is no justification coming forth as regards the inordinate delay in having approached the Writ Court. There is also no explanation put forth by the petitioners as to why the claim raised in the instant petition was not agitated by the petitioners while they were in service. The entire thrust of the submissions advanced by counsel is that similarly situated employees had approached this Court and have been granted relief.
7. The issue regarding delay in invoking the extraordinary writ jurisdiction under Article 226 of the Constitution of India was considered by the Hon'ble Supreme Court in Chairman, U.P. Jal Nigam and another v. Jaswant Singh and another (2006)11 SCC 464. In such case, certain employees raised the issue that they were not liable to be retired at the age of 58 years but should be permitted to continue in service till they attain the age of 60 years. Such employees were still in service when the writ petitions were filed. The writ petitions were ultimately allowed. Placing reliance upon such judgment, some of the employees, who had already superannuated, filed writ petitions seeking the same benefit. Even such petitions were allowed by the High Court in terms of following the earlier judgment. The judgment of the High Court was challenged before the Apex Court and wherein while 14 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 15 referring to earlier judgments in Rup Diamonds v. Union of India, (1989)2 SCC 356; "Jagdish Lal v. State of Haryana, (1997)6 SCC 538 and Government of West Bengal v. Tarun K. Roy, (2004)1 SCC 347, it was opined that persons who approached the Court at a belated stage placing reliance upon the order passed in some other case earlier, can be denied the discretionary relief on the ground of delay and laches. The relevant observations made by the Supreme Court are contained in Paras 5, 6 and 16 of the judgment and are extracted here under:-
"5. So far as the principal issue is concerned, that has been settled by this court. Therefore, there is no quarrel over the legal proposition. But the only question is grant of relief to such other persons who were not vigilant and did not wake up to challenge their retirement and accepted the same but filed writ petitions after the judgment of this court in Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300. Whether they are entitled to same relief or not? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post-retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this court?
6. The question of delay and laches has been examined by this court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly 15 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 16 situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others."
[Emphasis supplied]
8. The issue of delay was also dealt with by this Court in Tarsem Pal vs. Punjab State Power Corporation Limited and others, 2013 (3)SLR 314. In the case of Tarsem Pal(supra), the petitioner was serving as a Clerk with the respondent-Corporation and had retired on 16 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 17 31.03.2005. Claim in the writ petition was to grant to him the benefit of proficiency set up in the pay scale on completion of 23 years of service from the due date as per policy of the Corporation. During the service career, he had not agitated the claim for increments. For the first time, such claim had been made on 28.02.2005 i.e. just one month prior to superannuation. While non-suiting the petitioner on account of delay and laches it was held as follows:-
"11. In the aforesaid judgments, it has been clearly laid down that discretionary relief in a writ jurisdiction is available to a party who is alive of his rights and enforces the same in court within reasonable time. The judgment in another case does not give a cause of action to file a writ petition at a belated stage seeking the same relief. Such petitions can be dismissed on account of delay and laches. As has already been noticed above in the present case as well, the petitioner joined service in the year 1965 and retired in the year 2005, but raised the issue regarding benefit of proficiency step up in the pay scale on completion of 23 years of service from the due date more than five years after his retirement referring to a judgment of this court and filed the petition claiming the same relief.
12. The petitioner retired from service on 31.3.2005 and the claim pertaining to the benefit of proficiency step up, which may be admissible to the petitioner during his service career, was sought to be raised more than five years after his retirement, the claim made at such a late stage deserves to be dismissed on account of delay and laches only. The petitioner could raise a grievance about the pay scales admissible to him or the last pay drawn by him within a reasonable time after 17 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 18 his retirement. He cannot be permitted to raise the same at any time on the plea that the same is recurring cause of action.
13. Considering the enunciation of law, as referred to above, in my opinion, the petitioner herein is not entitled to the relief prayed for and the petition deserves to be dismissed merely on account of delay and laches."
9. At this stage, counsel appearing for the petitioners would make an attempt to overcome the obstacle of delay by placing reliance upon a Full Bench Judgment of this Court in Saroj Kumar vs. State of Punjab, 1998(3) SCT 664. Counsel would argue that as per dictum laid down in Saroj Kumar's case(supra), matters of pay fixation involve a recurring cause of action and as such, writ petitions for such claim cannot be dismissed on the ground of delay and laches and the Court at the most, may restrict the arrears upto 38 months from the date of filing of the petition and disallow the arrears for the period for which even a suit had become time barred.
10. The reliance placed by counsel upon the judgment in Saroj Kumar's case, is wholly misplaced. The observations and aspect of delay in Saroj Kumar's case, were in the light of the judgment of the Supreme Court in M.R. Gupta vs. Union of India and others, 1995(4) RSJ
502. In M.R. Gupta's case(supra), it had been categorically held that so long as an employee "is in service" a fresh cause of action arises every month when he is getting his monthly salary on the basis of a wrong calculation made contrary to rules. It was further held that the claim to be awarded the correct salary on the basis of a proper pay fixation "is a right which subsists during the entire tenure 18 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 19 of service".
11. In the present case, however the petitioners choose not to agitate their claim while in service. It is much subsequent to their superannuation that they have woken up and seek to gain impetus from certain decisions that may have been rendered in the case of similarly situated employees.
12. Considering the dictum of law as laid down in Chariman, U.P. Jal Nigam's case (supra), the petitioners herein are not entitled to any releif as prayed for and the petition deserves to be dismissed on the sole ground of delay and laches.
13. Ordered accordingly."
11. The Division Bench of this Court in "H.S. Gill vs Union of India and others", 2016(2) SCT 477, has held that an employee cannot claim the revised pay scale after retirement once he has been receiving the pay scale granted by the employer for the last 09 years. The relevant portion from the said judgment, reads as under:-
"14. The petitioner is also not entitled to any relief on account of principle of delay and laches. He has been receiving the pay in the pay scale of Rs.6500-10500 right from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For the first time, he moved the representation on 29.8.2011, so, he kept mum for about 9 years. Thus, the claim of the petitioner is highly belated and stale."
12. The reliance placed by the learned counsel for the petitioner, upon judgments referred to above, are clearly distinguishable and not applicable to the facts of this case as no question of delay was involved/adjudicated in the said judgments.
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13. On a pointed query raised by the Court as to how the present petition is maintainable on account of huge delay, as the impugned orders relate to year 1981, 1986, 1988 and 1989, learned counsel for the petitioner submits that punishment of stoppage of two annual increments with cumulative effect, gives rise to recurring cause of action every month, therefore, there is no delay in filing the present petition.
14. The contention of the petitioner that stoppage of increments with cumulative effect is a recurring cause of action, cannot be accepted as in "Gurbax Singh vs Pepsu Board Transport Corporation and others", 2014 SCC Online (P&H) 8063, it has been held by this Court that punishment of stoppage of increments is not a recurring cause of action and the punishment order of stoppage of increments has to be challenged before the Civil Court within 03 years and the suit filed after 03 years is barred by limitation. The operative part of the said judgment, reads as under:-
"Learned counsel for the appellant has argued that the stoppage of increments with cumulative effect has a recurring cause of action affecting pay and allowance payable to him and therefore, the suit cannot be said to be barred by limitation. Reliance is placed upon judgment of this Court in Malkiat Singh v. State of Haryana, 2008 (2) SLR 192 and Yog Raj Mittal, since deceased through is legal representatives v. State of Punjab, 2008 (4) SLR
169. The question of law as to whether, the punishment of stoppage of increments has the recurring cause of action 20 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 21 or that suit is to be instituted within three years of the passing of the order was considered by the Division Bench is RSA No. 1927 of 1994 titled 'Amar Singh v. State of Punjab' decided on 03.05.2006. In the aforesaid case, the challenge was to 12 orders in respect of stoppage of increments with or without cumulative effect. Such suit was filed after three years of passing of the last of such order as well. The learned Division Bench relied upon an earlier judgment of the Division Bench in Randhir Singh v. State of Haryana 1994 (3) RSJ 110 to hold that the suit instituted on 12.04.1990 against the 12 order passed on 23.07.1984 is clearly barred by limitation and had been rightly dismissed by the lower Appellate Court. While dismissing the appeals filed by the plaintiff, the Bench also placed reliance on two judgments of the Supreme Court in Punjab State v. Darshan Kumar 1995 Supp (4) SCC 220 and State of Punjab v. Rajinder Singh, Conductor 1999 SCC (L&S) 664.
It has been held that the suit for declaration challenging the order of punishment of the stoppage of increments has to be disputed before the civil court within three years. The suit filed after three years is barred by limitation."
15. To the same effect is the judgment passed in "Guru Dutt vs Pepsu Road Transport Corporation", 2001(3) SCT 1066, wherein it has been held as under:-
"2. The plaintiff has been non-suited by the first appellate Court for the following reasons given in para Nos. 8 to 11 of the impugned judgment :-
"In the instant appeal, the only point for determination is whether the suit filed by the appellant was within limitation. On this point Shri 21 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 22 S.K. Sharma, ld. counsel for appellant has mainly argued that the suit filed by the appellant was within limitation because right of increment is recurring right. He has cited ruling State of Punjab v. Gurdev Singh, Ashok Kumar, 1991(3) SCT 93 (SC) : AIR 1991 Supreme Court 2219, that the limitation for challenging the impugned orders is three years. If the party approaches the Court after the expiry of statutory period, the Court cannot give the declaration sought for. In the supra ruling it has been held as under:-
"A suit for declaration that an order of dismissal or termination from service passed against the plaintiff dismissed employee is wrongful, illegal or ultra vires is governed by Article 113. It cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article it is to provide for cases which would not be covered by any other provision in the Limitation Act. The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for".
Similar view was held by our own Hon'ble High Court in State of Punjab v. Balbir Kaur, 1996(3) Punjab Law Reporter 795 in which the 22 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 23 penalty of withholding one increment with cumulative effect was imposed and it was held that the period of limitation to challenge the said order was three years as provided under Article 113 of the Limitation Act (36 of 1963). In para No. 9, it was held that :
".........The order of penalty, may be illegal or otherwise, can only be set aside within a period of three years from the date of cause of action accrued to the Government employee. In the present case cause of action accrued to the plaintiff, when the order of penalty was initially passed on 30.8.1993 and later on 8.5.1986 when the order of penalty was modified. Therefore, the suit to get these orders declared as illegal and void ought to have been filed within a period of three years from the latter dated viz 8.5.1986 as by virtue of this order right to revise salary by the employee on expiry of the month was put to an end. The order of penalty still stands, it having not been set aside within the period of limitation. Once that is so, it was not open to the Courts below to grant relief as has been granted in the present case."
To the similar effect are rulings Punjab State v. Hardev Singh, 1997(2) SCT 101 (P&H) : 1997(1) PLR 669, State of Punjab v. Babu Singh, 1996(2) SCT 91 (P&H) : 1996 PLR 482 and the Punjab State v. Kulwinder Singh, 1995(2) PLR 718.
9. On the other hand, ruling 1996(2) AIJ 652 (supra) cited by the learned counsel for the appellant do not apply to the facts of the present case and is quite distinguishable. In the said ruling the delinquent official has claimed arrears of increment and it was held by their Lordships that no doubt the right to increment is a recurring right and the petitioner is entitled to the same, but in view of the laches on the 23 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 24 part of the (petitioner) payment of any arrears of the increments prior to 1990 was declined. Similarly, the other rulings State of Punjab v. Sandhu Singh, 1993(2) Recent Services Judgments 766, Punjab State v. Paramjit Singh, 1992(1) Punjab Law Reporter 417 and State of Punjab v. Parkash Singh, 1993(3) SCT 394 (P&H) : 1992(8) SLR 689 are also quite distinguishable and do not apply to the facts of the present case.
10. As far as the ruling State of Madhya Pradesh v. Syed Qamarali, 1967 Services Law Reporter 228 cited by the learned counsel for the appellant is concerned, the same is also not applicable to the facts of the present case in view of ruling AIR 1991 Supreme Court 2219 (supra) cited by the learned counsel for the respondents.
11. Thus, relying upon the supra authorities, I hold that the period of limitation for challenging the impugned orders was within three years. The appellant has failed to file the suit within three years and as such his suit has been rightly dismissed by the learned trial Court being time barred. The learned trial Court has, therefore, rightly appreciated the evidence while dismissing the suit being time barred and thus, I affirm the same".
3. Faced with this difficulty, the learned counsel for the appellant submitted that both the Courts below fell in error by holding that the suit of the plaintiff was beyond limitation. He submitted that the case pertains to the arrears of salary of the plaintiff and in these circumstances there will be no limitation. In support of his contention, the learned counsel for the appellant has relied upon 1996(1) SCT 8, M.R. Gupta v. Union of India and others. I do not subscribe to the argument of the learned counsel for the appellant. The cited judgment is distinguishable on facts. In fact the plaintiff was challenging the order dated 18.11.1971 and other orders dated 7.4.1972, 18.7.1975 and 17.2.1977 vide which his two annual increments with 24 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 25 cumulative effect were stopped and the period with effect from 9.1.1977 to 21.1.1977 was treated as leave without pay. The cause of action arose to the plaintiff on the date of the passing of these orders. Resultantly, the suit ought to have been filed by the plaintiff within three years. The present suit was filed in the year 1991 which was hopelessly barred by limitation. There is no error of law on the part of the Courts below.
No merit. Dismissed.
Appeal dismissed."
16. The instant petition suffers from inordinate and unexplained delay, with the cause of action purportedly having arisen in 1981 onwards, when the petitioner's increments were withheld. The petitioner has waited for over 35 to 43 years to approach this Court, and such delay in filing the writ petition is gross and unjustifiable. The Courts are constantly of the expectations that a litigant will always approach it in trueness and with sense of responsibility. The petitioner's failure to annex the complete and accurate copies of the documents i.e. orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986, 17.05.1988, and 31.11.1989 (Annexures P-3 to P-8), show the lethargic and indolent approach of the petitioner which in any manner, the Court cannot be allowed to tolerate.
17. In view of the foregoing discussion and abovesaid authoritative enunciation of law by the Hon'ble Supreme Court and this Court, the aforesaid issue as raised in the present writ petition cannot be allowed to be agitated at this belated stage accordingly, the present petition is dismissed on the ground of delay and latches with costs of 25 of 26 ::: Downloaded on - 23-11-2024 07:51:07 ::: Neutral Citation No:=2024:PHHC:147615 CWP No.25608 of 2021 26 Rs.10,000/-, to be deposited with the Punjab and Haryana High Court Lawyers Welfare Fund.
(NAMIT KUMAR)
JUDGE
12.11.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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