Delhi High Court
Pronabendra Chakraborty vs Union Of India And Anr. on 30 September, 2016
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) NO. 8784/2016
Date of decision: 30th September, 2016
PRONABENDRA CHAKRABORTY ..... Petitioner
Through Mr. A.K. Ojha, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Ms. Aditi Sharma, Advocate for Ms.
Suparna Srivastava, Advocate for respondent Nos.
1 and 2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL):
The petitioner-Pronabendra Chakraborty in this writ petition impugns
the order dated 16th January, 2014 passed in the OA No. 141/2014 by the
Principal Bench of the Central Administrative Tribunal (Tribunal, for short)
and the order dated 29th January, 2015 passed in the RA No. 105/2014.
2. The petitioner had worked as an Attache in the Indian High
Commission, Dhaka, Bangladesh from 20th May, 1999 to 12th August, 2002.
On his return to India, the difference in salary in his parent department and
the salary paid to him when he was working at the post of an Attache in the
Indian High Commission, Dhaka, Bangladesh, to which the petitioner was
entitled was accordingly paid to him. Servant allowance was not paid.
3. The petitioner retired from service on 31st January, 2010.
4. On 4th April, 2012, the petitioner made a representation seeking
payment of servant allowance, which he claimed he was entitled to while
he was working as an Attache in the Indian High Commission at Dhaka
from 20th May, 1999 to 12th August, 2002. This was after more than two
years after retirement and nearly ten years after the petitioner's return from
Bangladesh. No reply was received. The petitioner also issued legal notice
dated 9th May, 2013, to which again no reply was given. Thereafter, the
petitioner filed the aforesaid OA No. 141/2014 along with an application for
condonation of delay. This OA and the application for condonation of delay
were dismissed on 16th January, 2014. Review application, as noticed
above, was also dismissed vide order dated 4th March, 2014.
5. The said application for condonation of delay was primarily
predicated on the Rule 134(2) of the Research and Analysis Wing
(Recruitment, Cadre and Service) Rules, 1975 (1975 Rules, for short) and
the position and entitlement of the petitioner, thereunder. The issue of
payment of servant allowance under Rule 134(2) 1975 Rules was decided
by the Tribunal in OA No. 929/2008 titled V.K. Jain versus Union of India
& Others. The petitioner claimed entitlement to identical or similar
treatment. This judgment of the Tribunal, the petitioner submits, would be a
judgment in rem and not judgment in personam. The Supreme Court in State
of Uttar Pradesh and Others versus Arvind Kumar Srivastava and Others,
(2015) 1 SCC 347 has observed that the normal rule is that when a
particular set of employees is granted relief by the Court, then all identically
situated employees should be treated equal and alike by extending that
benefit, for otherwise it would amount to discrimination and would be
violative of Article 14 of the Constitution.
6. We have considered the said contentions of the petitioner and regret
our inability to agree with him. The claim made by the petitioner was
clearly barred by limitation and, therefore, he had filed an application
seeking condonation of delay. The judgment of the Tribunal dated 5th
March, 2009 in V.K. Jain's case (supra) would not be a judgment in rem (
See Section 41 of The Evidence Act, 1872). It was a judgment in the said
case and was applicable to a particular employee, though the Tribunal had
interpreted the applicable provisions. The Tribunal had not intended that
this decision would apply to all similarly situated persons, including the
petitioner, whose claim was already barred by limitation. V.K. Jain had
challenged the decision not to pay him servant allowance, shortly after the
said applicant had returned from the foreign assignment and filed the OA
for payment of servant allowance. The question or plea of limitation was not
decided, for the applicant therein was posted abroad till 6th May, 2005 and
his representation was rejected on 26th March, 2008. Even if we accept that
the decision in V.K. Jain's case (supra) interpreting the relevant rule would
apply to other cases, the decision itself would not revive time barred claims.
7. Section 21 of the Administrative Tribunals Act, 1885 prescribes the
period of limitation and in the present case the claim of the petitioner having
been raised nearly ten years from the date of his return was rightly
dismissed. The cause of action had arisen when the petitioner had returned
to India and was not paid servant allowance. The case of Arvind Kumar
Srivastava (supra) would not assist and resque the petitioner for the ratio of
the said case does not hold that the law of limitation does not apply. In
paragraph 22.2 of Arvind Kumar Srivastava (supra), it stands clarified that
the principle in paragraph 22.1 is not absolute. It is subject to a well-
recognised exception in the form of delay and laches. The two paragraphs
read:-
"22.1. The normal rule is that when a particular set
of employees is given relief by the court, all other
identically situated persons need to be treated alike
by extending that benefit. Not doing so would
amount to discrimination and would be violative of
Article 14 of the Constitution of India. This principle
needs to be applied in service matters more
emphatically as the service jurisprudence evolved by
this Court from time to time postulates that all
similarly situated persons should be treated similarly.
Therefore, the normal rule would be that merely
because other similarly situated persons did not
approach the Court earlier, they are not to be treated
differently.
22.2. However, this principle is subject to well-
recognised exceptions in the form of laches and delays
as well as acquiescence. Those persons who did not
challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay
only because of the reason that their counterparts who
had approached the court earlier in time succeeded in
their efforts, then such employees cannot claim the
benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They
would be treated as fence-sitters and laches and delays,
and/or the acquiescence, would be a valid ground to
dismiss their claim."
8. In the present case, there was a considerable delay of more than 11
years. The OA in question was filed by the petitioner in 2012, four years
after the decision in V.K. Jain (supra). It is pertinent to note that he
petitioner's claim was barred by limitation even in 2009.
9. The petitioner has placed reliance on paragraph 9.49 of the NGO
Handbook of Administrative Instructions to submit that he did not approach
the court of law keeping in view the sensitivity of the assignment and nature
of work. We are not inclined or impressed by the said argument for the
simple reason that the petitioner had sufficient time after returning from
Dhaka to approach the court or the tribunal, when he was denied payment of
servant allowance. The letter dated 4th August, 2012 written by the
petitioner states that on his return from special assignment to his parent
department, he was paid the difference in salary of the Second Secretary and
the Attache and the element of the servant allowance for the said period was
not paid. This fact was known to him throughout. Pertinently, V.K. Jain
had filed the original application on return to India.
10. In view of the aforesaid position, we do not find any merit in the
present writ petition and the same is dismissed. There will be no order as to
costs.
SANJIV KHANNA, J.
SUNITA GUPTA, J.
SEPTEMBER 30, 2016
VKR/NA
