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SCA/13902/2010 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13902 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
HASMUKHBHAI
SHANTILAL MEHTA - Petitioner(s)
Versus
PRESIDENT
/ SECRETARY & 2 - Respondent(s)
=====================================================
Appearance :
MR
HEMANG R RAWAL for Petitioner(s) : 1,
NOTICE SERVED for
Respondent(s) : 1 - 2.
Mr.Maulik G.Nanavati,learned
ASST.GOVERNMENT PLEADER for Respondent(s) :
3,
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 21/02/2011
ORAL
JUDGMENT
1. Rule.
Mr.Maulik G.Nanavati, learned Assistant Government Pleader, waives
service of notice of Rule for respondent No.3. Notices have been
served upon respondents Nos.1 and 2, but none appears on their
behalf.
2. By
way of the present petition under Article 226 of the Constitution of
India, the petitioner assails the impugned judgment of the Gujarat
Secondary Education Tribunal (“the Tribunal” for short)
dated 9-7-2010, rendered in Application No.24 of 2009, whereby the
said Application of the petitioner has been rejected on the ground of
delay.
3. Briefly
stated, the facts of the case are that the petitioner was initially
appointed in the Sayaji High School, Vadodara on 3-9-1964, where he
worked upto 13-5-1965. After prosecuting further studies, the
petitioner was appointed as Assistant Teacher at Sardar Vallabhbhai
Vidyalaya, Vadodara on 3-7-1967, and he worked at that place upto
9-6-1968. The petitioner, thereafter, acquired the qualification of
B.Ed. and was appointed as Part-time Teacher in the School run by
respondent No.1. With effect from 15-6-1970, the petitioner was
appointed as Full-time Teacher and ever since then, he has been
working in the said School. The case of the petitioner is that he was
given the pay scale of Rs.440-750 in the year 1973 and the relevant
entry regarding pay fixation was made in his Service Book. However,
the petitioner was not given Selection Grade on completion of 15
years of service. He, therefore, filed Application No.801 of 1987
before the Tribunal, which was allowed and the relevant entry
regarding the grant of Selection Grade of Rs.500-900 with effect from
13-1-1981 with one additional increment was made in the Service Book
of the petitioner. Consequent upon the revision of pay scales, the
pay of the petitioner was fixed in the scale of Rs.2000-3500 with
effect from 23-2-1989 (at Rs.2375). The petitioner was appointed as
Principal on 23-2-1989 and, thereafter, there was a further revision
in pay scales pursuant to the recommendations of the 5th
Pay Commission. Accordingly the pay of the petitioner was fixed in
the scale of 6500-10,500. The grievance of the petitioner is that as
per the Government Resolutions dated 27-10-1977 and 5-1-1965, he was
entitled to one additional increment from the date of his promotion
as Principal, which has not been granted to him. Aggrieved thereby,
the petitioner filed the above-mentioned application in the Tribunal,
which has been rejected on the ground of delay, by the impugned
order.
4. Mr.Hemang
R.Rawal, learned advocate for the petitioner
has submitted that the decision of the Tribunal in dismissing the
Application of the petitioner on the ground of delay is erroneous,
inasmuch as the Tribunal has not considered the aspect that the
petitioner is agitating for grant of an additional increment which
would have a direct bearing on his salary. As the said cause of
action is financial, it accrues from month to month, therefore, the
Tribunal could not have rejected the application on the ground of
delay, as the cause would still survive. In support of the above
submissions, the learned advocate for the petitioner has relied upon
the following judgments:
(a) State
of Madhya Pradesh v. Yogendra Shrivastava, 2009(13)SCALE 329
(b) M.R.Gupta
v. Union of India, (1995)5 SCC 628
(c) Union
of India v. Tarsem Singh, (2008)8 SCC 648
5. Mr.Maulik
G.Nanavati, learned Assistant Government Pleader has submitted that
in view of the principles of law enunciated in judgments rendered by
the Supreme Court, this Court may pass appropriate orders. However,
the learned Assistant Government Pleader has contented that in case
the Court is inclined to accept the plea made by the petitioner, the
claim for recovery of the arrears of the increment may be restricted
to a reasonable period of time.
6. At
this stage, it would be fruitful to look into the legal position
regarding whether the cause of the petitioner, being one for grant of
arrears of an additional increment, would be hit by delay and
laches.
7. In
State of Madhya Pradesh v. Yogendra Shrivastava (Supra) it is
held that:
“14. The
appellants contended that the claims were therefore barred by
limitation. It was pointed out that the respondents were paid NPA at
a fixed rate as stipulated in the appointment orders and NPA was
increased only when it was revised by Government orders from time to
time; that respondents accepted such NPA without protest; and that
therefore, they cannot, after periods varying from 5 to 15 years,
challenge the fixation of NPA or contend that they are
entitled to NPA at a higher rate, that is 25% of their pay. We cannot
agree. Where the issue relates to payment or fixation of salary or
any allowance, the challenge is not barred by limitation or the
doctrine of laches, as the denial of benefit occurs every month when
the salary is paid, thereby giving rise to a fresh cause of action,
based on continuing wrong. Though the lesser payment may be a
consequence of the error that was committed at the time of
appointment, the claim for a higher allowance in accordance with the
Rules (prospectively from the date of application) cannot be rejected
merely because it arises from a wrong fixation made several years
prior to the claim for correct payment. But in respect of grant of
consequential relief of recovery of arrears for the past period, the
principle relating to recurring and successive wrongs would apply.
Therefore the consequential relief of payment of arrears will have to
be restricted to a period of three years prior to the date of the
original application. [See: M.R. Gupta vs.Union of India – 1995 (5)
SCC 628, and Union of India vs. Tarsem Singh 2008 (8) SCC
648]Conclusion :”
8. In
M.R.Gupta v. Union of India (Supra), the
appellant therein had filed an application before the Central
Administrative Tribunal after 11 years for proper fixation of pay as
on the date of his joining the Railway Service. The Supreme Court
held as under:
“5.
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.
6. 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 the 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 Subba Rao vs. Mattapalli Raju)”
9. In Union
of India v. Tarsem Singh (Supra),
taking the same view, the Supreme Court has held, after discussing
the relevant judgments on this point,that:
“7. 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 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.”
10. Admittedly,
the petitioner filed the application before the Tribunal after 10
years. The Tribunal has, in paragraph 5 of its judgment and order,
accepted on merits, that the case of the petitioner (and others
before it) is covered in his favour by its own judgment in another
matter. However, it has proceeded to reject the application of the
petitioner solely on the ground that there is a delay of 10 years.
According to the Tribunal, though no prescribed period of limitation
is provided for in the Act under which the Tribunal is constituted,
or by any Rules or Regulations applicable to it, public policy
demands that a litigant should approach the said forum within a
reasonable time.
11. The
Court may now examine the above-stated reasons given by the Tribunal,
in the light of the settled legal position emerging from the
above-quoted judgments of the Apex Court.
12. From
the position of law as enunciated by the Supreme Court, as above,
it is clear that though the petitioner has approached the Tribunal
after 10 years, his claim would fall in the Exception to the
principle of delay and laches, as it relates to a continuing wrong.
The only grievance of the petitioner is that he has not been granted
the additional increment with effect from the date on which he was
promoted as Principal. This, therefore, gives him a cause of action
every time he is paid salary, making it a recurring cause of action,
renewed from month to month. As no right of any third party is
involved or affected, the ground of delay could not have been
pressed into service by the Tribunal and the application could not
have been rejected on this ground though, on merits, the Tribunal has
stated that the case of the petitioner is covered by its own judgment
in Application No.243 of 2006 decided on 13-5-2010, in his favour.
13. Considering
that the cause pleaded by the petitioner involves recurring monetary
benefits, it would not be hit by delay and laches, though such delay
can be taken into consideration while granting arrears of the
financial benefit, by limiting the said benefit to a reasonable
period of time. In the considered view of this Court, the Tribunal
has committed an error by entering into the arena of “public
policy”, while rejecting the application of the petitioner. The
Tribunal has granted the benefit claimed by the petitioner to other
applicants before it by the very same judgment and has also agreed
that, on merits the petitioner is entitled to the same. As the
rejection of the application on the ground of delay is erroneous,
resultantly, the claim of the petitioner ought to be granted.
14. For
the aforestated reasons, as the impugned judgment of the Tribunal is
not in consonance with settled principles of law, as enunciated by
the Supreme Court, the said judgment qua the petitioner only,
is hereby quashed and set aside. The respondents are directed to
grant the benefit of one additional increment to the petitioner.
However, it is clarified that the arrears of the amount so payable
to the petitioner, insofar as it affects his pensionary benefits,
shall be restricted to a period of three years from the date of
filing the Application before the Tribunal.
15. The
petition is partly-allowed, in the above terms. Rule is made
absolute, to the above extent. There shall be no orders as to
costs.
(Smt.Abhilasha Kumari,J)
arg
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