Allahabad High Court
Bhagwan Deen vs State Of U.P.Thru.Addl.Chief ... on 2 July, 2021
Bench: Ritu Raj Awasthi, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 212 of 2021
Appellant :- Bhagwan Deen
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Urban Devlp. Lko. & Ors.
Counsel for Appellant :- Ghaus Beg
Counsel for Respondent :- C.S.C.
Hon'ble Ritu Raj Awasthi,J.
Hon'ble Dinesh Kumar Singh,J.
Order on C.M. Application No.68120 of 2021
[Application for Condoantion of Delay in filing Special Appeal]
The case is taken up through Video Conferencing.
Heard.
There is a reported delay of 230 days as on the date of filing of appeal.
Learned counsel for the appellant-applicant submits that the special appeal is accompanied with an application for condonation of delay.
The cause shown in the affidavit filed in support of an application for condonation of delay is sufficient and more particularly considering the Apex Court's order dated 27.04.2021, passed in Misc. Application No.665 of 2021 in SMW (C) No.3 of 2020, Cognizance for Extension of Limitation Vs. XXXX, we find it appropriate to condone the delay.
The application for condonation of delay is accordingly allowed.
Delay in filing of special appeal is hereby condoned.
Order on the memo of appeal
Heard learned counsel for the appellant and Sri Q. H. Rizvi, learned Additional Chief Standing Counsel for opposite party No.1.
This intra-Court appeal has been filed challenging the final order dated 7.10.2020 passed in Writ Petition No.15733 (SS) of 2020 whereby the writ petition preferred by the appellant-petitioner has been dismissed on the ground of delay.
Learned counsel for the appellant-petitioner submits that the recovery made from the pensionary benefits of the appellant-petitioner was wrong and it could not have been done. The cause of action accrued to the petitioner-appellant was a continuous cause of action and as such, there was no delay in filing of the writ petition. It is submitted that the Apex Court in the case of Union of India v. Tarsem Singh [(2000 (8) SCC 648] has held that in the case of re-fixation of pay and pension, the cause of action is a continuous cause of action and the relief may be granted without being influenced by the delay in approaching the Court. Para -7 of the judgment, which is relevant, reads 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 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. 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, 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."
We have considered the submissions made by the learned counsel for the parties.
The Writ Court has dismissed the writ petition taking note of the fact that the writ petition was filed in the year 2020 challenging the orders dated 4.9.2015 and 19.9.2015 wherein firstly the pay of the petitioner was fixed and secondly, pension was fixed after deducting an amount of Rs.2,05,895/- which was the excess payment made to the appellant-petitioner by giving him the salary of technical grade, whereas he was non-technical and he did not undergo requisite training nor did he produce I.T.I. certificate for requisite trade.
Learned Single Judge has taken note of the fact that the recovery of the excess amount has already been made and now after accepting the impugned order, the petitioner has approached the Court after a delay of approximately five years. There is no reason for the Court to entertain at the belated stage, however, the Writ Court has made it open to the appellant-petitioner to avail any other remedy as may be permissible to him under law.
It is to be observed that the appellant-petitioner had accepted his post-retiral dues including pension without any protest and has been getting the pension as fixed by the opposite parties after re-fixation of his pay-scale in a non-technical grade. It is the case of the appellant-petitioner that he was not entitled to get the salary in the technical grade and was wrongly given the higher salary which was deducted by the authorities. The only submission of learned Counsel for the appellant-petitioner is that once the excess amount was paid that could not have been deducted.
We are of the considered view that in case the appellant-petitioner was aggrieved due to the deduction of the excess amount, then he should have approached the Court in time when the said recovery was being made from him and not after accepting his fate and after accepting of the post-retiral dues including the pension etc. There is no plausible explanation given by the appellant-petitioner for the delay in approaching the Court, as such we do not find any illegality or infirmity in the view taken by the learned Single Judge.
The appeal lacks merit and is accordingly dismissed
.
[Dinesh Kumar Singh, J.] [Ritu Raj Awasthi, J.]
Order Date :- 2.7.2021
lakshman
