Allahabad High Court
Bhanwar Singh vs The Director Local Bodies U.P. And ... on 13 December, 2022
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 18826 of 2022
Petitioner :- Bhanwar Singh
Respondent :- The Director Local Bodies U.P. And 3 Others
Counsel for Petitioner :- Satish Chandra Dwivedi
Counsel for Respondent :- C.S.C.,Atul Tej Kulshrestha
Hon'ble Mrs. Sangeeta Chandra,J.
This Court had heard the matter yesterday and passed the following order:-
"1. Heard learned counsel for the petitioner and Sti Atul Tej Kulshrestha, Advocate, who appears on behalf of Nagar Palika Parishad, the respondent nos. 3 and 4 and the learned Sanding Counsel, appearing for the respondent nos. 1 and 2.
2. This petition has been filed with the following main prayer :
"(i) to issue a writ, order or direction in the nature of mandamus commanding the respondents to correct the fixation of pay, pension and all retiral benefits of petitioner and make payment of arrears thereof with interest to him within the period which may be fixed by this Hon'ble Court.
(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to decide the representation of the petitioner dated 23/24.12.2021 by reasoned and speaking order within the period which may fixed by this Hon'ble Court."
3. Learned counsel for the petitioner submits that the petitioner was a permanent / confirmed Clerk in Nagar Palika Parishad, Muzaffarnagar and was promoted as Pratham Shreni Clerk on retirement of regular incumbent, in December, 1993. While he was working as Pratham Shreni Clerk, he was also asked to work as Chief Clerk with effect from 14.7.1996. On such post remaining vacant for a long time, his case was sent for approval of his promotion as Pratham Shreni Clerk and as Chief Clerk to the Director Local Bodies but no orders were passed. The petitioner retired on 31.1.1998 and the Executive Officer, Nagar Palika Parishad, Muzaffarnagar issued a certificate to the petitioner saying that he retired as Pratham Shreni Clerk and had been working as Chief Clerk since 1996. The petitioner has been given salary for the post of Pratham Shreni Clerk but not for working on the post of Chief Clerk and while fixing his pension, his work as Pratham Shreni Clerk had also not been considered by the respondent no. 4. The petitioner has made a representation in this regard to the Director Local Bodies, the respondent no. 1 for correct pay fixation and revision of his retiral benefits including pension on 23.12.2021. No heed has been paid. Hence this petition.
4. The petitioner retired in 1998. His promotion as Chief Clerk was not approved by the Competent Authority under the Rules. Now after more than 24 years of his retirement, the petitioner has approached this Court only after making a representation on 23.12.2021 with the aforesaid prayers as mentioned hereinabove.
5. There is no explanation for delay in approaching this Court.
6. As prayed by the learned counsel for the petitioner, put up tomorrow as fresh. "
Today, when the matter was taken up, learned counsel for the petitioner has placed reliance upon an order passed by a Division Bench of this Court in Special Appeal No.1038 of 2018 (Surya Kumar Singh Vs. State of U.P. and 4 others, decided on 23.10.2018).
This Court has perused the order passed by the Division Bench. In the said case, the appellant-petitioner had approached this Court in 2018 for a cause of action which allegedly arose in the year 2008 and after which the petitioner had retired in 2010. The Writ Court had dismissed the petition as it was suffered from gross delay and laches. However, the Writ Court had also made certain observations on merits of the case. Before the Division Bench, it was argued that the petitioner's grievance was with regard to incorrect pay-scale being given to him and matter relating to grant of pay-scale cannot be said to be a stale cause of action as it is recurring cause of action month to month. In any case, if the Writ Court had found that there was delay, it could have dismissed the writ petition in limine instead of making observations on merits also.
The Division Bench placed reliance upon another Division Bench in Special Appeal Defective No.482 of 2018 (Badshah Vs. State of U.P. and others) where the Court had observed that while considering the issue relating to delay and / or laches, several factors must be kept in mind including the nature of the case and the currency of cause. It should also consider whether rights of other parties had accrued due to approaching the Court with delay. The appellant-petitioner was aggrieved by non-grant of ACP to him during his service. He retired thereafter. The pension fixed by the respondent was less that the amount for which he may have been entitled had ACP been given to him in time. It was a recurring cause of action therefore placing reliance upon the judgment in the case of M.R. Gupta Vs. Union of India, the Court had observed that 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 even thereafter and can be exercised at the time of each payment of the salary and also at the time of payment of pension. The right of a Government servant to be paid correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which subsists during the subsistence of the mortgage.
The question would been different had it been a case of termination/dismissal or removal which is a one time action and inconvenience caused to the employer while looking for records and searching evidence relating to disciplinary inquiry if any held by them in case of delinquent employee who was dismissed/removed or terminated several years ago as was the case considered by Hon'ble the Supreme Court in the case of C. Jacob V. Director of Geology and Mining and another [(2008) 10 SCC 115].
This Court is of the considered opinion that the petitioner has a valid point that needs to be considered by the respondent. In case, he has not been granted his correct pay-scale during his time of service, his pension has also been fixed incorrectly therefore, this writ petition is entertained and held to be maintainable despite delay in approaching this Court.
The petitioner has made representation on 24.12.2021 to the respondent no.1, the Director, Local Bodies which has not been decided till date.
This writ petition is disposed of with a direction to the respondent no.1 to look into the matter of wrong pay fixation of the petitioner and pass an appropriate reasoned and speaking order, strictly in accordance with law, within a period of three months from the date a copy of this order is produced before him. In case, wrong pay fixation had been done, the matter shall be referred to the Assistant Director (Pension) also for correct pension payment order to be issued within a period of one month thereafter.
Order Date :- 13.12.2022
Vivek Kr.
