Jaipal Singh Sharma vs Union Of India & Ors
2016 Latest Caselaw 6316 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 6093/2016
                                       Date of Decision: 30th September, 2016

        JAIPAL SINGH SHARMA                               ..... Petitioner
                      Through            Ms Rani Chhabra, Adv.
                      versus
        UNION OF INDIA & ORS                               ..... Respondent

                      Through            Mr G. Tusha Rao and Mr Mayank
                                         Sharma, Advs. for UOI
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MS. JUSTICE SUNITA GUPTA

        SANJIV KHANNA, J: (ORAL)

1. A short cause arises for consideration in the present writ petition filed by the petitioner - Jaipal Singh Sharma. The petitioner is aggrieved, to a limited extent, against the order dated 19.05.2016 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No.1289/2015.

2. The OA was allowed and the respondents were directed to consider the case of the petitioner, for pension and other pensionary benefits, by including a part of the Extra Department Agent (EDA) service towards the shortfall in the minimum qualifying service of 10 years. The grievance of the petitioner is that the Tribunal has denied him arrears of pension, which he was entitled.

3. The petitioner had worked as an EDA with the Department of Posts from 05.10.1967 to 15.12.1995 i.e. for more than 28 years and 2 months. Subsequently, he had worked as a Group D Officer for 9 years 7 months and 14 days from 16.12.1995 to 30.07.2005. Nevertheless, the petitioner was

denied pension under the Central Civil Service Pension Rules, 1972 for he had not worked for a minimum period of 10 years qualifying service as a Group D officer. In other words, the respondents had completed excluded the petitioner's service as an EDA.

4. Identical issue had come up for consideration before the Madras Bench in OA NO.1264/2001 decided on 18.04.2002 in M.R. Palanisamy v Union of India, Represented by Secretary, Department of Posts & Ors., which was allowed. The writ petition filed before the High Court was dismissed. The SLP filed by the department against the said decision was dismissed, leaving the question of law open to be decided in appropriate proceedings. Subsequently, the Madras High Court in A. Kannayan v Union of India, Represented by the Secretary, Department of Posts and others, 2014 (1) LLN 713 (Mad.) had again directed payment of pension to a retiree who had rendered 9 years 6 months and 1 days service as Group D employee, and was earlier an EDA. Other High Courts have taken a similar view. The High Court had directed the benefit given to the applicant should be extended and given to others similarly situated. Reference can be made to the decision of the Supreme Court in State of U.P. and Ors. v. Arvind Kumar Srivastava and Ors., (2015) 1 SCC 347, wherein it has been observed:-

"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 that 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.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v.Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

5. Learned counsel for the respondents has stated that he has not

received any instructions or any indication whether the respondents want to prefer any appeal or not. The respondents in the circumstances noted, it appears, have accepted the decision of the Tribunal dated 19.05.2016 in the case of the petitioner.

6. It would not be just and fair to deny the petitioner arrears of pension, especially in the present case where the employee has worked for nearly 38 years, if the EDA period were to be included. The question and issue of arrears would be covered by the decision of the Supreme Court in Union of India and Ors. v Tarsem Singh, (2008) 8 SSC 648, wherein it has been held as under:

"7. 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 re-opening 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. In so far as the consequential relief of recovery of arrears for a past period, 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.

8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."

7. Keeping in view the aforesaid facts and circumstances, we would accept the prayer for arrears. The petitioner had retired on 30.07.2005. He would be entitled to arrears of pension for a period of 3 years prior to the date when he had filed the first OA No.567/2014. The aforesaid OA was withdrawn by the petitioner in order to challenge the policy which was relied upon by the respondents in their reply. Therefore, the date of filing of OA No.567/2014 should be treated as the starting point for computing the prior period of 3 years for payment of arrears of pension.

8. The arrears will be paid within a period of 4 months from today, failing which the respondents would pay interest @ 6% per annum.

With the aforesaid directions, the writ petition is disposed of.

SANJIV KHANNA, J

SUNITA GUPTA, J SEPTEMBER 30, 2016 rs