Allahabad High Court
Jay Prakash vs Union Of India And 2 Others on 1 August, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:125144-DB Chief Justice's Court Case :- WRIT - A No. - 7811 of 2024 Petitioner :- Jay Prakash Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Tej Om Prakash Gupta Counsel for Respondent :- A.S.G.I.,Agam Narain Roy Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J.
1. Impugned in the present proceedings at the instance of Jay Prakash (in short 'the original applicant') is the order dated 22.04.2024 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (in short 'Tribunal') rejecting the Misc. Application No.4200 of 2023 (Delay Condonation Application) in O.A. No. 557 of 2023 (Jay Prakash v. Union of India and others) and consequently, dismissing the original application as time barred.
2. The facts of the case as projected by the original applicant before the Tribunal was that he was initially appointed as a Welder on 06.12.1969 in Railways and thereafter accorded promotion on 13.10.2008 as Tech-I/Welder (P.Way) in pay scale of Rs. 4500-7000/- and after attaining the age of superannuation, he is retired on 30.06.2014 in the pay scale of Rs.5200-20200 + 2800/- Grade Pay. According to the original applicant, the recommendations of the 6th pay commission was implemented in the Railways in the year 2012 itself, resulting to the fact that the original applicant became entitled to the pay scale of Rs.9300-34800+4200/-. However, the same was not paid to the applicant. The original applicant claims to have preferred several representations/request letters before the respondents herein seeking payment of the benefits referable to the implementation of the 6th pay commission. It is claimed that the representations/request letters had been made on 01.11.2014, 05.02.2014, 10.02.2015, 15.09.2015, 12.12.2015, 08.03.2016, 05.12.2014, 10.02.2015, 15.09.2015, 12.12.2015, 08.03.2016, 12.12.2016, 01.03.2017, 10.09.2017, 07.03.2018, 10.08.2018, 01.03.2019, 06.08.2019, 05.12.2019, 01.03.2017, 10.07.2017, 07.03.2018, 10.08.2018, 01.03.2019, 06.08.2019, 05.12.2019, 02.01.2020, 02.05.2022, 16.06.2022, 14.07.2022, 25.08.2022, 04.11.2022, 10.11.2022 and lastly on 10.05.2023.
3. Since the grievance of the original applicant was not redressed as neither any order in black and white was passed nor the benefits were extended to him so the original applicant preferred O.A. No. 557 of 2023 along with Misc. Application No. 4200 of 2023 (Delay Condonation Application).
4. On being noticed, an objection to the Delay Condonation Application along with a reply on merits to the original application was filed by the respondents. To which the original applicant filed rejoinder affidavit.
5. On 22.04.2024, the Delay Condonation Application came to be rejected as time barred and, consequently, the original application was dismissed.
6. Questioning the said order, the original applicant has filed the present writ petition.
7. Shri Tej Om Prakash Gupta, learned counsel for the original applicant has submitted that order of the Tribunal cannot be sustained for a single moment as the Tribunal has adopted an incorrect approach and proceeded towards a wrong direction. Elaborating the said submission, it has been submitted that the claim of the original applicant was not time barred as before the date of the superannuation of the original applicant on 30.06.2014 already the 6th pay commission came to be implemented in the year 2012 making the original applicant entitled for revision of the pay scale of Rs.9300-34800+4200/-.
8. Submission is that wrong fixation of the pay scale while denying the benefits of the 6th pay commission which was implemented prior to the superannuation of the original applicant tantamounts to payment of less pension as pension is to be paid as to the last paid drawn. It is thus sought to be argued that wrong fixation of pay scale is a continuous wrong which accrues month to month basis which is relatable to the payment of pension, therefore, the claim of the original applicant cannot be said to be time barred. Reliance has been placed upon the judgement in the case of M.R. Gupta v. Union of India and others, AIR 1996 SC 669, Union of India and others v. Tarsem Singh, (2008) 8 SCC 648 and Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation, J.T. 2022 (5) SC 470, so as to contend that wrong fixation of pay scale is a continuous wrong.
9. Countering the submission of learned counsel for the original applicant, Shri A. N. Roy, learned counsel for the Railways has submitted that the claim setup by the original applicant is grossly barred by delay and laches, particularly, when the original applicant had not approached the Tribunal within time but kept on making representations. According to him, mere making of successive representations does not extend the limitation. He relies upon the judgement in the case of S.S. Rathore v. State of Madhya Pradesh reported in 1989 (4) SCC 582.
10. Submission is that in view of the express provisions of Section 20 read with Section 21 of the Administrative Tribunal Act, 1985, the period of limitation in cases of non disposal of the representation/claim is one year and six months and in the present case, the original applicant has approached the Tribunal after an inordinate and unexplained delay of 11 years from implementation of the sixth pay commission and 9 years from superannuation, therefore, it is prayed that the writ petition be dismissed and the order of the Tribunal be upheld in toto.
11. We have heard the learned counsel for the parties and perused the record carefully.
12. The facts are not in issue. It is not in dispute that applicant superannuated on 30.06.2014. It is also not being disputed that the sixth pay commission was implemented in the year 2012 whereby the pay scale was revised to Rs.9300-34800+4200/-. The only issue which arises for consideration is whether it was open for the original applicant to have approached the Tribunal in the year 2023 with regard to the grievances which according to the original applicant remained unheeded since the year 2012 when the sixth pay commission was implemented and on the date of the superannuation on 30.06.2014. It is evident from the record that the applicant has been representing his cause since the year 2014 till 2023.
13. To test the submission of the learned counsel for the Railways as to whether the claim of the original applicant is time barred or not the nature of claim is to be seen. Plainly and simply, the original applicant is claiming benefits of the sixth pay commission which according to the original applicant stands accrued to him on the implementation of the sixth pay commission while making him admissible for the pay scale of Rs.9300-34800+4200/- against the pay scale which he drew on his date of retirement Rs.5200-20200 + 2800/- grade pay.
14. Evidently, the quantum of pension is always dependent upon the last paid drawn. In case, the benefits of 6th pay commission are extended to the original applicant then his pay scale shall stand enhanced on his date of his superannuation making the original applicant entitled to higher pension.
15. In M.R. Gupta (supra), the Hon'ble Apex Court while interpreting Fundamental Rules 22(c) had the occasion to consider the issue relatable to wrong fixation of the pay-scale and it was observed as under:
"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 subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subha Rao and Others v. Mattapalli Raju and Others, AIR 1950 Federal Court 1)."
16. In Tarsem Singh (supra), the question of belated service related claim came for consideration wherein it was observed that in the case of the claim based upon continuing wrong which does not affect the settled rights of the third parties, it would not be appropriate to deny the said benefits. It was held as under:
"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 reopening 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 refixation 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. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the 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."
17. The aforesaid principles of law came to be reiterated in the case of Rushibhai Jagdishbhai Pathak (supra).
18. Applying the principles or law as culled out in the above noted decisions in the present facts of the case an irresistible conclusions stands drawn that wrong fixation of pay scale is a continuous wrong which accrues on month to month basis when the same is related to payment of pension, which obviously makes a marked difference as the pension is obviously paid on the last paid drawn.
19. There is no quarrel to the proposition of law laid down in the judgement relied upon the Tribunal in the case of Chennai Metro Politan Water Supply & Swerage Board and Ors. v. T.T. Murali Babu, reported in (2014) 4 SCC 108 and Pathapati Subba Reddy (Died) By L.Rs. and Others v. Special Deputy Collector (LA), reported in 2024 SCC Online SC 513 that a litigant whose sleeps over his rights cannot claim equity, however, there is a slight distinction that in the present case, no third party settled rights are being affected as it is not the case of seniority or promotion. Insofar as the judgement in the case of S.S. Rathore (supra) is concerned, the same in the present facts of the case would not apply as the present case falls within the category of continuous wrong.
20. Bearing in mind, the nature of the claim set up by the original applicant before the Tribunal as well as the judicial pronouncement referred to above, we are of the firm opinion that the claim of the applicant is required to be decided on merits and not to be negated on the grant of delay and laches.
21. Accordingly, the writ petition is being decided in the following manner:
(a). The order dated 22.04.2024 passed in Misc. Application No. 4200 of 2023 (Delay Condonation Application) in O.A. No. 557 of 2023 (Jay Prakash v. Union of India) are set aside.
(b). Delay in filing the original application is condoned.
(c). The original application stands restored to its original number and the case is remitted back to the Tribunal to decide the matter afresh strictly in accordance with law.
22. Passing of the order today may not be construed to be an expression that this Court has gone into the merits of the claim of the original applicant as the order is confined to question of delay. Therefore, the Tribunal shall decide the claim strictly in accordance with law without being influenced by any of the observations made hereinabove.
Order Date :- 1.8.2024 A. Prajapati (Vikas Budhwar, J.) (Arun Bhansali, C.J.)