Delhi High Court
Union Of India vs Shri Banarasi Dass on 8 December, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.325/2008
% Date of Decision: 08.12.2009
Union of India .... Petitioners
Through Mr.V.S.R. Krishna, Advocate
Versus
Shri Banarasi Dass .... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The respondent had reached the maximum in the pay scale of
Rs.425-700 on 1st April, 1979 and remained in the said basic pay till
31st March, 1982 and, therefore, he claimed one stagnation increment
of Rs.25/- per month which had been denied to him.
The respondent had relied on OM dated 19th December, 2000
wherein a query had been raised whether stagnation increment is to be
taken into account while fixing the pay of retired government servant on
notional basis. It had been clarified that in respect of those employees
who had retired prior to 1st January, 1986, their pension was required
to be updated by fixing their pay as on 1st January, 1986 by adopting
the same formula as for serving employees as per the CCS (RP) Rules.
It also stipulated that stagnation increment, if any earned by pre-1986
retirees had to be taken into account for the purpose of notional
fixation. Consequently, the effect of the OM was that pre-1986 retirees
were to be treated as if they were in service on 1st January, 1986 for the
purpose of notional fixation of pay so as to ensure complete parity.
Considering these facts and the OMs, the Central Administrative
Tribunal had directed the petitioners to allow one stagnation increment
notionally in terms of Railway Board OM dated 12th January, 2001 in
case of respondent and holding that the respondent would be entitled to
revised pension from 1st October, 2004, by order dated 26th March,
2007 in OA No.2404 of 2004, Banarsi Dass v. Union of India which is
challenged by the petitioner in the present writ petition.
The petitioners have contended that the petition was time barred
as the cause of action had arisen in the year 1982 when the respondent
had attained the age of superannuation and the clarification issued in
the year 2000 is not applicable as the respondent had retired in 1982.
This cannot be disputed by the petitioners that the arrears of the
revised pension has been allowed by the Tribunal from the date of
petition, i.e., 1st October, 2004 and not from the date the respondent
had retired.
In M.R. Gupta v. Union of India and others, AIR 1996 SC 669,
the Supreme Court had held that if the pay fixation is not in accordance
with rules, it would be a continuing wrong against such an employee,
which will give rise to a recurring cause of action. The question of
limitation would be relevant for recovery of arrears of past period and
not for re-fixation of the pension in accordance with rules and such an
employee would be entitled to proper fixation of his pay in accordance
with rules and to cessation of continuing wrong. In the circumstances,
the decision of the Tribunal directing the petitioners to allow one
stagnation increment notionally in terms of Railway Board OM dated
12th January, 2001 and directing payment of revised pension from the
date of original application before the Tribunal on 1st October, 2004
cannot be faulted nor it can be held that the plea of the respondent was
barred by time.
The next plea raised by the petitioner is that the respondent is
not entitled for benefit under communication dated 27th July, 1983 as
he had already attained the age of superannuation, also cannot be
faulted as similarly situated person, Shri Guljar, who had retired from
Railways EME(F) on 31st October, 1981 much prior to the issuance of
the communication dated 27th July, 1983, had been granted pay
fixation by inclusion of stagnation increment. Learned counsel for the
petitioners have failed to disclose as to how the notional pay fixation
and granting of stagnation benefit can be denied to the respondent in
the facts and circumstances.
In the circumstances, the order of the Tribunal dated 26th March,
2007 in OA No.2404 of 2004, Banarasi Dass v. Union of India does not
require any interference by this Court in exercise of its jurisdiction
under Article 226 of the Constitution of India. The writ petition is,
therefore, without any merit and it is dismissed. Parties are, however,
left to bear their own costs.
ANIL KUMAR, J.
December 08, 2009 VIPIN SANGHI, J.
'Dev'
