HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 1120/2022 Shri Rajendra Prasad Mathur S/o Shri Mangilal, Aged About 64 Years, Sec 5Fb, C.h.b., Jodhpur.
----Appellant Versus
1. State Of Rajasthan, Through Secretary To The Government, Public Health And Secretariat, Jaipur.
2. District Collector, Jodhpur.
3. Sub Divisional Officer, Osiya, District Jodhpur.
----Respondents
For Appellant(s) : Mr. Ronak Arora
Mr. Rohit Mutha
For Respondent(s) : ---
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
02/01/2023
The instant intra court appeal is preferred against order dated 23.11.2022 passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.17054/2022 whereby the writ petition filed by the petitioner was rejected.
Briefly stated facts of the case are that the appellant-writ petitioner entered into the services of the Public Health Engineering Department of the State of Rajasthan as daily rated Sub-Engineer w.e.f. 01.06.1984. Subsequently, the post of Sub- Engineer was re-designated as Junior Engineer. The appellant in the year 1992 by way of filing S.B. C.W.P. No.525/1992 sought a direction upon respondent-department to pay him salary applicable to the pay scale of Junior Engineer along with dearness (Downloaded on 03/01/2023 at 08:37:55 PM) (2 of 5) [SAW-1120/2022] allowance and other admissible allowances as was being paid to the regularly appointed engineers. A direction for regularisation of his services on the post of Junior Engineer with all consequential benefits was also sought. It is apposite to note here that during pendency of the writ petition, the services of the appellant were regularised as Junior Engineer w.e.f. 02.07.2003. Learned Single Bench by an order dated 04.10.2004 disposed of the aforesaid writ petition with a direction upon the respondent-department to fix the appellant at the minimum of pay scale, applicable to the Junior Engineers working in the department from the date of filing of writ petition i.e. 22.01.1992 with all consequential benefits. The authorities of respondent-department did not comply with the order dated 04.10.2004 passed by learned Single Bench, whereupon a Contempt Petition No.292/2005 was filed by the appellant. A compliance report was submitted by the respondents apprising contempt court that pay fixation in compliance of the order dated 04.10.2004 passed by learned Single Bench had been made and payment of arrears to the tune of ₹2,69,026 was prepared and after making statutory deductions, a sum of ₹1,70,689 had been paid to the appellant. In view of this development, the contempt court vide order dated 02.08.2006 dismissed the Contempt Petition No.292/2005 preferred by the appellant. However, owing to some dispute regarding calculation of the arrears, liberty was granted to the appellant to file a representation before the authorities of the respondent- department. The record of the case shows that the representations made by the appellant against correctness of the calculation of the arrears remained unactioned. (Downloaded on 03/01/2023 at 08:37:55 PM)
(3 of 5) [SAW-1120/2022]
Aggrieved and dissatisfied with the inaction of the
respondent-department, appellant filed S.B. C.W.P. No.615/2007 before learned Single Bench which came to be decided by an order dated 07.02.2007 with a direction to the respondents to decide the representation of the appellant which may be in the form of notice for demand of justice through counsel dated 29.11.2006 within three months from the date of filing of certified copy of the order. The respondent No.2 whereupon passed an order dated 07.08.2008 stating that relief as claimed by the appellant in S.B. C.W.P. No.525/1992 had already been granted to him, thus nothing remains to be complied at their end.
The appellant after almost 14 years of the passing of order dated 07.08.2008 has again approached learned Single Bench with the prayer that respondents may be directed to award him increment from the date of regularisation with interest on the ground that he has received an information under the RTI Act through communication dated 17.08.2021 that the persons similarly situated were given the first increment w.e.f. 01.03.1997 which has given him a fresh cause of action.
The learned Single Bench by the impugned order dated 23.11.2022 dismissed the writ petition on the ground that the litigation initiated by the appellant in the year 1992 stood concluded in the year 2008 therefore, after passage of 14 years the same issue cannot be re-agitated all over again. The order dated 23.11.2022 is assailed in the present special appeal.
Learned counsel for the appellant submitted that the principle of delay and laches is not applicable in the cases of continuing wrong and till the time, it does not affect any third (Downloaded on 03/01/2023 at 08:37:55 PM) (4 of 5) [SAW-1120/2022] party rights. Learned counsel further submitted that the right to claim proper increment subsists during the entire service tenure and even after superannuation from services as it gives rise to a fresh cause of action each time the salary or pension is incorrectly computed and paid. Learned counsel urged that the appellant has been making several representations which are pending till date therefore, delay, if any in approaching the Hon'ble Court for payment of correct salary ought to have been condoned by learned Single Bench and the writ petition should have been heard on merits. For strengthening the aforesaid contention, counsel placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of M.R. Gupta vs. Union of India reported in 1995 SCC (5) 628.
Heard learned counsel for the appellant and perused the material available on record.
We find no infirmity in the observation of learned Single Bench that the dispute raised by way of filing S.B. C.W.P. No.525/1992 in the year 1992 had culminated into finality way back in the year 2008. Further, the appellant was duly informed by the respondent No.2 vide order dated 07.08.2008 that the relief as claimed in S.B. C.W.P. No.525/1992 has already been granted to him. The order dated 07.08.2008 was not challenged by the appellant and the same has therefore attained finality.
Indubitably, cause of action, if any had arisen in favour of the appellant in the year 2008. The appellant after lapse of almost 14 years cannot be permitted to reopen the issue with regard to grant of salary and proper increments in the pay scale applicable (Downloaded on 03/01/2023 at 08:37:55 PM) (5 of 5) [SAW-1120/2022] for the post of Junior Engineer from the date of regularisation in the respondent-department.
In our considered opinion, the decision rendered by Hon'ble the Apex Court in the case of M.R. Gupta (supra) has no application in the present case. That was a case of denial of proper fixation from the date of initial appointment whereas the claim of the appellant for grant of salary with admissible increments for his working against the post of Junior Engineer has already been adjudicated upon by learned Single Bench of this Court in two rounds of litigation by deciding S.B. C.W.P. No.525/1992 and S.B. C.W.P. No.615/2007.
The attempt on the part of the appellant to create a fresh cause of action in the garb of a communication under the RTI Act dated 17.08.2021 cannot be countenanced. It is settled law that repeated representations do not extend limitation nor can a be ground to plead a fresh cause of action so as to overcome delay and laches which in this case is 14 years from the date of passing of order dated 07.08.2008.
In view of above, we are of the view that no case for interference is made out in the order passed by the learned Single Bench.
The special appeal is therefore, dismissed. No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
57-KshamaD/-
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