Sheikh Mohammed Sakil ... vs Municipal Commissioner
2022 Latest Caselaw 1402 Guj

     C/SCA/7262/2017                              JUDGMENT DATED: 08/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7262 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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          SHEIKH MOHAMMED SAKIL JANMOHAMMED & 2 other(s)
                             Versus
                    MUNICIPAL COMMISSIONER
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1,2,3
MRS MH RAWAL(2851) for the Petitioner(s) No. 1,2,3
MR DEEP D VYAS(3869) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 08/02/2022
                     ORAL JUDGMENT

Issue rule, returnable forthwith. Mr Deep D. Vyas, learned advocate waives service of notice of rule on behalf of the respondent.

2. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioners have prayed for directions to the respondents to comply with the award dated 31.3.1992 passed by the Presiding Officer, Labour Court in Reference (LCA) No. 742 of

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1985 as well as directions contained in the oral judgment dated 6.10.2004 rendered by this Court in Special Civil Application No.3334 of 1993. The petitioners have also prayed for grant of continuity of service from 1985 to 1993-94 and the benefit of regular pay scale notionally from the year 1986 and thereafter, fix the pay scale and accordingly pay arrears from the date of the reinstatement till today with all consequential and incidental benefits.

3. Brief facts, leading to the filing of the captioned writ petition, are as under:

3.1 According to the petitioners, they were appointed as labourers in the year 1981 and on 1.1.1985 the service of the petitioners came to be abruptly terminated by the respondent Ahmedabad Municipal Corporation (herein after referred to as "the Corporation" ) without following any due process, which led to the raising of an industrial dispute culminating into Reference (LCA) No. 742 of 1985. The Labour Court vide award dated 31.3.1992, directed the Corporation to reinstate the petitioners with continuity of service but without back wages. One of the petitioners, being aggrieved, preferred a Special Civil Application No.3334 of 1993 before this Court and this Court, vide oral judgment dated 6.10.2004 directed respondent Corporation to pay to the petitioner, retrenchment compensation with 6% interest from 1985; however, the request of the petitioner for back wages was not accepted.

3.2 In the petition, it has been pointed out that Corporation has formulated a policy, vide circular dated 2.6.1983, for regularising the service of daily wagers on completion of 900 days and continuous five years of service. The grievance of the petitioner is that despite the Labour Court having granted continuity of service from 1985 and the petitioners who were working since 1981 were entitled to regular pay scale from 1986; the Corporation in total

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disregard of the directions contained in the award of the Labour Court so also the oral judgment passed by this Court, granted the benefits of regular pay scale only from 1994 and 1996. Grievance is also raised that the juniors to the petitioner were given the benefit of regular pay scale in the year 1986-87 and therefore, the petitioners have been subjected to gross injustice. It is therefore, urged that the petitioners are entitled to continuity of service from 1985 till 1994/1996, that is, from the date on which they were reinstated. The petitioners being aggrieved, have preferred the captioned writ petition with the aforementioned prayers.

4. The Corporation has entered its appearance, while strongly opposing the entertainment of the writ petition, has placed on record the order dated 12.7.2019 passed by the Deputy Municipal Commissioner (CNCD). It is stated that the representation dated 9.3.2015 made by the petitioners, seeking grant of certain benefits, has been rejected. It is therefore urged that the petition may not be entertained and be dismissed in limine, with cost.

4.1 In the second affidavit, the Corporation, while narrating the factual events, which had taken place during all these years, stated that it was only after completion of total 900 days of service and after verifying year wise service record, the service of the petitioners came to be regularised on the available vacant permanent/scheduled post. In concluding paragraph, it is stated that the regularisation is neither an automatic absorption, nor would it mean conferment of permanency, merely because the petitioners have been working for a long period. It has also been stated that even otherwise, the petitioners have not been recruited by following the regular process of recruitment and mere engagement of the petitioners cannot result in the grant of benefits as prayed for. It has been emphasised that fulfilment under the policy was never a subject matter before the Labour Court and it is only on fulfilling the requirements, the service of the petitioners has been regularised as

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per the prevalent policy.

5. The petitioners, while refuting the contents of the affidavit-in- replies, have raised the grievance that despite there being judicial pronouncement, the Corporation has passed the order dated 12.7.2019 which is in total defiance of the directions. Clearly, there is not a whisper regarding the grant of continuity of service. Further, there is no explanation offered in the order as well as in the reply filed by the Corporation as to why the continuity has not been granted to the petitioners. It is therefore, urged that the petitioners have been wrongly victimised and therefore the action is in gross violation of Articles 14 and 16 of the Constitution of India and in sheer breach of violation of principles of natural justice. Hence, the action of the Corporation is required to be quashed and set aside and the prayers prayed for by the petitioners deserve to be granted.

6. Mr Hardik Rawal learned advocate has submitted that the petitioners have joined the Corporation in the year 1981 and in the year 1985, the service of the petitioners came to be abruptly terminated, without following any procedure as envisaged in the Industrial Disputes Act 1947 (hereinafter referred to as "the Act"). The termination of the petitioners was a subject matter of challenge before the Labour Court, which culminated into Reference (LCA) No. 742 of 1985 and the Labour Court vide award dated 31.3.1992, while partly allowing the reference, directed reinstatement of the petitioners with continuity of service, but without back wages. It is further submitted that since the Labour Court has not granted back wages, one of the petitioners preferred a writ petition being Special Civil Application No.3334 of 1993 and this Hon'ble Court was kind enough to direct the Corporation to pay the retrenchment compensation as was payable to him on the retrenchment from service.

6.1      It is also submitted that the Labour Court, while partly






       C/SCA/7262/2017                                      JUDGMENT DATED: 08/02/2022

allowing the reference in favour of the petitioners, clearly directed reinstatement with continuity of service and therefore, the Corporation was obligated to have considered the service rendered by the petitioners for the years 1985 to 1994/1996 and having not considered the said period, it has acted against the direction issued by the Labour Court as well as by this Hon'ble Court, as contained in the oral judgment dated 6.10.2004. It is submitted that the inaction on the part of the Corporation in not deciding the representations made by the petitioners is illegal, unjust, arbitrary and mala fide and therefore, such inaction is tainted with illegality and violative of Article 14 of the Constitution of India.

6.2 It is next submitted that in the case of petitioner no.3, the Corporation while passing the order dated 4.9.2015 granting gratuity, did not consider the period from the years 1985 to 1996 and what has been considered is only 17 years of service. Therefore, the service of almost ten years has been wiped out and thereby, the concerned petitioner has been deprived of the earlier service which he has rendered. It is submitted that the service of the petitioners has been regularised as per the provisions contained in the Circular No.46 dated 24.10.1994 issued by the Chief Account Department and therefore, whatever benefits the petitioners are eligible and entitled for, may be extended. Mr Rawal, learned advocate has stated at the bar that the petitioners are not pressing for seniority and actual arrears for the period from 1985 to 1994/1996 and all that the petitioners are praying for is the notional benefits so that the petitioners may get their legitimate dues of gratuity. It is submitted that the claim of the petitioners is for the interregnum period, that is, after termination and till the reinstatement. Therefore, it is urged that the Corporation may be directed to consider the period in question more particularly, when the Labour Court, while allowing the reference, has directed reinstatement with continuity of service.

       C/SCA/7262/2017                          JUDGMENT DATED: 08/02/2022




6.3      The learned advocate for the petitioners has placed on record

the office order dated 5.2.1985 whereby, service of 53 daily wagers, who were junior to the petitioners, have been regularised with effect from 1.1.1985; placing them in the grade of Rs.196-232. It is submitted that the Corporation in the year 1985, in tune with the prevailing policy, has regularised the service of 53 daily wagers working with it, who were undisputedly junior to the petitioners. Regularising service of the junior and not considering the case of the petitioners, clearly establishes that the petitioners have been victimised.

6.4 While adverting to the aspect of delay in approaching the Court, it is submitted that the dispute is a live dispute because, out of three petitioners, two petitioners have not accepted the claim and the action of the Corporation in not conferring the benefit of continuity of service, is an action of continuing wrong, which is nothing but continuing source of injury to the petitioners and therefore, it cannot be said that the claim of the petitioners is barred by delay and laches. Reliance is placed on the judgment in the case Union of India vs. Tarsem Singh, reported in 2008 (8) SCC

648. It is submitted that the Apex court has held that normally a belated service claim will be rejected on the ground of delay and laches. Carving out exception, it has held that where a service related claim is based on a continuing wrong, a relief can be granted even if there is a long delay in seeking remedies, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. It is therefore submitted that the case of the petitioners would fall within the exception because, the direction issued by the Labour Court as well as by this Court, granting continuity of service, has not been implemented and such action on the part of the Corporation is a continuing wrong and therefore, the plea of the petition being barred by delay and laches is not available to it.

       C/SCA/7262/2017                          JUDGMENT DATED: 08/02/2022




6.5      Reliance is also placed on the judgment in the case of Asger

Ibrahim Amin vs. Life Insurance Corporation of India, reported in 2016 (13) SCC 797 to contend that the Apex Court while reiterating the principle laid down in the case of Tarsem Singh (supra), has held that in cases of continuing wrong, delay/laches/limitation will not thwart the claim so long as claim, if allowed, does not have adverse repercussions on settled third-party rights.

6.6 Reliance is also placed on the judgment of this Court in the case of State of Gujarat vs. Kalhans Harial Patel rendered in Letters Patent Appeal No.2259 of 2017 to contend that the Hon'ble Division Bench, while placing reliance on the judgment of the Apex Court in the cases of Tarsem Singh (supra) as well as Asger Ibrahim Amin (supra), has rejected the objection raised by the State Government about the claim of the respondent therein being barred by delay.

6.7 Further reliance is placed on the judgment in the case of Kasimbhai M Ajmeri vs. District Development Officer rendered in Special Civil Application No. 7588 of 2004. It is submitted that this Court, while allowing the writ petition has held that when the Labour Court granted reinstatement with continuity of service and back wages, the employee is required to have continued in service from the date of his initial appointment and that the period from the date of termination till reinstatement is required to be considered for all purposes, as if, the service of the employee was not terminated. This Court has held that any contrary view would nullify the judgment and award passed by the Labour Court granting continuity of service.

6.8. The learned advocate for the petitioners therefore submitted that the case of the petitioners is covered by the judgments of the Apex Court on the issue of delay as well as on the issue of the effect of grant of reinstatement by the Labour Court. Under the

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circumstances, the prayers of the petitioners deserve to be granted with a direction to the Corporation to consider and to take into account the service of the petitioners rendered for the period from 1985 to the year 1993/1994, when the petitioners were reinstated.

7. Per contra, Mr Deep D. Vyas, learned advocate appearing for the Corporation while vehemently opposing the entertainment of the petition, raised two fold submissions; one, that alternative remedy is available to the petitioners, which is both, efficacious and enforceable. Under the circumstances, the petitioners be relegated to raise the industrial dispute under the provisions of the Act, and second, that the petition is barred by delay and laches because, the cause of action to the petitioners had arisen in the year 1994/1996 when the service of the petitioners were regularised by the Corporation. Therefore, on both the counts, the petition does not deserve to be entertained.

7.1 While further elaborating its case, it is submitted that as can be culled out from the record, the petitioners have not taken any steps for all these years, and it was only in the year 2015 that representations have been made raising the grievance and that too about implementation of the award and there was no request for regularisation. It is submitted that there is nothing on record substantiating the steps taken by the petitioners for the intervening period. It is not that the petitioners were not having any knowledge about the same. Therefore, the claim raised, is barred by delay and laches.

7.2 It is submitted that even on demurrer, say there is nothing about intervening period; any order passed will have permanent financial burden. Further, even if the action of the Corporation is illegal or void, the same ought to have been challenged within a reasonable period. The service of the petitioners has been regularised in the year 1994/1996 and all the benefits available to

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them have been extended; however, the petitioners have never raised any grievance nor challenged the orders passed by the Corporation regularising the services of the petitioners. It is only in the year 2015, that the petitioners have raised the grievance and that too with respect to implementation of the award and not the aspect of seeking regularising of service, from the year 1985.

7.3 It is submitted that as is clear from the record, the petitioners have joined the Corporation in the year 1981 and thereafter, in the year 1985 the service of the petitioners was terminated and by virtue of the award passed by the Labour Court, the petitioners were reinstated and thereafter, upon completion of 900 days and five years, the service of the petitioners have been regularised. While inviting the attention to the service book placed along with the additional affidavit, it is submitted that a bare perusal whereof, clearly suggests that they do not support the case of the petitioners because, till the year 1985, none of the petitioners have completed 900 days and five years and therefore, there does not arise any question of regularising the service of the petitioners prior to the year 1994/1996.

7.4 It is further submitted that the petitioners have raised the dispute and as is clear from the terms of reference, it was not with respect to the policy of regularisation but was with respect to illegal termination. Therefore, neither before the Labour Court nor before this Court, the petitioners have ever raised any grievance as regards regularisation. Further, the Labour Court had not issued any direction, directing the Corporation to regularise the service, however, by way of the present writ petition, the petitioners are seeking benefits of regularisation of the period before the date when the petitioners have not even completed 900 days. It is submitted that the award dated 31.3.1992 passed by the Labour Court has been implemented and so also the oral judgment dated 6.10.2004 passed by this Hon'ble Court rendered in Special Civil

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Application No.3334 of 1993. Therefore, nothing is left to be implemented by the Corporation.

7.5 It is further submitted that as is discernible from the record, the petitioners have raised the grievance by making representation in the year 2015. The contents of the representation clearly suggest that it is with respect to implementation of the award, but definitely not for regularising the service of the period prior to the year 1994/1996. It is further submitted that the representation made in the year 2015 for grant of benefits which, has been decided by the Deputy Municipal Commissioner (CNCD) on 12.7.2019. The request has been rejected on the ground that the service of the petitioners have been regularised and all the benefits have been extended in conformity with the directions issued by the Labour court vide award dated 31.3.1992.

7.6 It is further submitted that so far as the aspect of regularisation is concerned, the policy of the Corporation contemplates regularisation of the service only after completion of 900 days plus five years of continuous service, coupled with the fact that engagement should be on the scheduled post. The Corporation has formulated the policy for regularization of the daily wagers and the parties would be bound by such policy and hence the eligibility and entitlement have to be as per the conditions stipulated in the policy. Therefore, completion of 900 days plus continuous five years of service is a sine qua non; however, the service record of the petitioners would indicate that prior to the year 1994/1996 the petitioners have not completed 900 days plus five years of continuous service. Indeed, on completion of total 900 days of the service, the service of the petitioners came to be regularised on the scheduled post. It is submitted that so far as petitioner nos.1 and 2 are concerned, their service were regularised with effect from 1.3.1994 and 1.9.1994 vide orders dated 8.3.1994 and 21.3.1995 respectively, whereas the service of the petitioner no.3 was

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regularised with effect from 1.2.1996 vide order dated 21.3.1995. It is further submitted that the said exercise was undertaken by the Corporation after verifying the service record and therefore, no error has been committed by it in regularising the services of the petitioners in the years 1994 and 1996.

7.7 Reliance is placed on the judgment in the case of State of Tamil Nadu vs. A. Singamuthu, reported in 2017 (4) SCC 113. It is submitted that the Apex Court, while summarising the principles for regularisation has held that there has to be a need for proper and valid scheme of regularisation and mere long continuance in service, is irrelevant. It is further submitted that it is also well settled that regularisation is neither an automatic absorption nor it would mean conferment of permanency merely because the petitioners have been working for a long period. It is further submitted that it is undisputed that the petitioners have not been recruited by following the regular process of recruitment and mere engagement of theirs cannot result into grant of reliefs as prayed for more particularly, when the fulfilment of the provisions under the policy was never the subject matter before the Labour Court. However, the fact remains that the service of the petitioners has been regularised as per the policy upon their completing 900 days. Therefore, the claim of the petitioners raised in the present petition, is without any basis and does not deserve to be considered. It is urged that the petition being bereft of merits, the same shall be rejected.

8. Heard Mr Hardik Rawal learned advocate for the petitioners and Mr Deep D. Vyas, learned advocate for the Corporation; perused and considered the material available on record.

9. The facts not in dispute and relevant for deciding the captioned writ petition, are to the effect that the petitioners, owing to exigency of work on daily rated wages, were engaged in the year

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1981 and the service of the petitioners came to be abruptly terminated on 1.1.1985, which led to a dispute before the Labour Court, and culminated into Reference (LCA) No.742 of 1985. The Labour Court, Ahmedabad allowed the reference in part by passing an award dated 31.3.1992 and the Corporation was directed to reinstate the petitioners with continuity of service, but without back wages. The petitioner no.1 preferred the Special Civil Application No.3334 of 1993 before this court and vide oral judgment dated 16.10.2004, this Court, while not accepting the request of back wages, directed the respondent Corporation to pay to the petitioner no.1 the retrenchment compensation together with interest. By dismissal of the writ petition, and in absence of any challenge by the Corporation, the award dated 31.3.1992 has attained finality.

10. Pertinently, the petitioners were engaged on daily wage basis in the year 1981 and they continued to work till their service came to be terminated on 1.1.1985. The Corporation by filing an additional affidavit dated 16th March,2021, has placed on record the service record sheets of all the petitioners, which indicate the years as well as the number of days put in by the petitioners. For ready reference, the details of the number of days put in by the petitioners till the year 1984, are reproduced herein below for ready reference:

Name of the                  1981         1982    1983           1984
petitioner

Shakil Janmohammed

Mehbubmiya

From the above details, it is clear that so far as the petitioner nos.1 and 2 are concerned, by the year 1984, that is prior to their termination they have completed 853 and 815 days respectively that would be close to 900 days and so far as petitioner no.3 is

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concerned, he had completed close to 600 days. As stated hereinabove, the service of the petitioners came to be abruptly terminated on 1.1.1985 which led to raising of the dispute and the Labour Court, vide award dated 31.3.1992, directed the Corporation to reinstate the petitioners. Clearly, so far as grant of continuity of service is concerned there is no dispute and therefore, the issue which then arises for the consideration of this Court is the effect of the said direction by the Labour Court, which issue is no longer res integra.

11. It is, by now, well settled that reinstatement means reinstall or re-establish. It is also well-settled that once the reinstatement has been directed with continuity of service; it is not the case of fresh appointment, but is a case of reinstatement and therefore, the employee concerned would be entitled for all the consequential benefits. Also, the judgment of this Court, cited by the learned advocate for the petitioners in the case of Kasimbhai M Ajmeri (supra) is worth referring to. In the said case, the petitioner was appointed and was working as a daily wager from the year 1987 and his service came to be terminated with effect from 19.12.1988 followed by raising of an industrial dispute, which came to be allowed with the direction of reinstatement with full back wages and continuity of service and other consequential benefits. The petitioner therein was reinstated and again on 13.12.1994, his service came to be terminated followed by raising of an industrial dispute, further followed by direction of reinstatement with all consequential benefits. The respondent being aggrieved preferred a writ petition before this Court, which was dismissed, confirming the judgment and award passed by the Labour Court. The petitioner came to be reinstated once again as daily wager in the year 2002, however, he was denied the benefit from the date of his initial appointment and so also the benefits flowing from the Government Resolution dated 17.10.1988, which led to filing of a writ petition

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before this Court. This Court, while allowing the writ petition, observed in paragraphs 5.10 to 5.12 thus:

"5.10. Considering the aforesaid and more particularly when the Labour Court granted reinstatement with continuity of service and back wages, the petitioner is required to have continued in service from the date of his initial appointment i.e. from 8/7/1987 for all purposes. When the Labour Court in two References i.e. in Reference (LCK) Nos.189 of 1988 and 158 of 1995 granted reinstatement with full back wages and continuity of service the period from the date of termination till reinstatement is required to be considered for all purposes and as if the services of the petitioner were not terminated. Any contrary view would nullify the aforesaid two Judgement and Awards passed by the Labour Court granting continuity of service.

5.11. It is required to be noted at this stage that for the interregnum period, the petitioner has been paid back wages as per the judgement and awards passed by the Labour Court.

5.12. In view of the above, as such the petitioner would be entitled to the benefits conferred under Government Resolution dated 17/10/1988 on completion of 5 years, 10 years and 15 years of service as a daily wager considering his service from the date of his initial appointment i.e. 8/7/1987 and on completion of 5 years, 10 years and 15 years as a daily wager considering his service from 8/7/1987 i.e. from the date of his initial appointment as daily wager and on completion of 5 years, 10 years and 15 years from 8/7/1987, the petitioner shall be entitled to the benefits conferred under Government Resolution dated 17/10/1988. If the contention on behalf of the respondents that the aforesaid period is to be counted from 22/7/2002, the same would nullify the aforesaid two Judgement and Awards passed by the Labour Court confirmed by this Court by which the Labour Court has granted reinstatement with continuity of service. If the contention on behalf of the respondents is accepted, in that case it would amount to give premium to illegality committed by the respondents which has been quashed and set aside by the learned Labour Court. If the respondents would not have terminated the services of the petitioner illegally, which led to two References, the petitioner workman would have continued in service as daily wager from 8/7/1987."

12. This Court held that if the Labour Court has directed reinstatement with continuity of service and back wages, the employee concerned ought to have been continued in service from the date of his initial appointment for all purposes. Any contrary view would nullify the directions contained in the judgment and

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award passed by the Labour Court granting continuity of service. The learned counsel for the Corporation could not dispute the said proposition either on facts or on law and therefore, the said principle laid down by this Court applies on all fours to the facts of the present case. As discussed hereinabove, the Labour Court has granted continuity of service and therefore, it was obligated on the part of the Corporation, while reinstating the petitioners, to have considered the initial service rendered by the petitioners for the period from 1985 to 1994 and 1996, but it did not do so. If the Corporation is allowed to continue the said wrong, it would amount to nullifying the directions contained in the award dated 31.3.1992 of the Labour Court, which was accepted by the Corporation having not been challenged. Pertinently, it is not even the case of the Corporation that the Labour Court had denied continuity of service to the petitioners.

13. Perceptibly, as per the policy evolved by the Corporation for regularisation, the employee concerned should have completed 900 days and five years of continuous service. Besides, the Corporation in its Refuse Department, where the petitioners are/were working, had in the year 1985 vide Refuse/Est.No.64 dated 5.2.1985 regularised the service of 53 daily wagers with effect from 1.1.1985 putting them in the grade of Rs.196/232. It has been argued that the daily wagers whose service were regularised, were junior to the petitioners. Further, the Corporation itself in tune with the policy had regularised the service of the petitioners in the year 1994 and 1996 respectively, and when the Corporation itself has regularised the service of the petitioner and as there is no quarrel to their eligibility and entitlement for regularization, it ought to have considered the date on which the junior to the petitioners were regularised in service. Having not done so, the Corporation committed an error and hence, the action is tainted with illegality.

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14. Once this Court has come to the conclusion that the action on the part of the respondent Corporation is illegal, the issue which now arises for the consideration of this Court is as to from which date, the petitioners are eligible for the benefits. The learned advocate for the petitioners, at the outset, has stated at the bar that petitioners are not pressing for the benefits of seniority or for that matter actual arrears for the period from 1985 till the date of reinstatement, but all that the petitioners are praying for is consideration of the initial service, that is, after termination and before reinstatement, for the purpose of gratuity and other pensionary benefits. At the same time, the learned advocate for the Corporation has also raised the objection of petition being barred by delay and laches because, though the cause of action was available to the petitioners, when the orders were passed by the Corporation regularising the service, the petition has been filed in the year 2017. The said contention has no basis inasmuch as, had it been the case of promotion or affecting the third party right, the said objection would have been considered by the Court, but as is discernible from the record the issue is as regards non-consideration of the initial service rendered by the petitioners. At this stage, the judgment in the case of Tarsem Singh (supra), is worth referring to. The Apex Court, while discussing the difference between the continuing wrong vis-a-vis recurring/successive wrong, has held that a continuing wrong refers to a single wrongful act which causes a continual injury whereas recurring/successive wrongs are those which occur periodically, each wrong giving rise to distinct and separate cause of action. The Apex Court in para 7 has observed that normally, belated service claims will be rejected on the ground of delay and laches, however, exception has been carved out to the cases relating to a continuing wrong. In para 7, it has been observed thus:

"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

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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."

15. Pertinently, the issue involved in the present writ petition, is as regards grant of continuity of service from 1985 to 1994 and 1996 and thereafter, grant benefit and payment of arrears from the date of their reinstatement. Therefore, the issue is restricted to the petitioners and not affecting the right of third parties. Also, the learned advocate for the petitioners has stated that the petitioners do not press for seniority, actual arrears from 1985 till the date of reinstatement (i.e. 1994 and 1996). In the opinion of this Court, applying the principle laid down by the Apex Court as well as this Court, the petitioner are eligible for grant of benefit of continuity of service.

16. In view of the aforementioned discussion, the petitioners are directed to be treated in continuous service for all purposes from the years 1985 to 1994 and 1996 (i.e., the date on which the service of the petitioners were regularised) respectively except for the actual monetary benefits. Further, the consequential fixation on notional basis be done from 1994 and 1996 till the date of filing of the petition on 10.4.2017. The petitioner nos.1 and 2 shall be

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entitled for actual monetary benefit only from the date of the filing of the petition, i.e. 10.4.2017. The petitioners shall abide by the statement made by the learned advocate at the bar that the petitioners shall not claim any seniority and actual arrears for the period from 1985 till the date of reinstatement. So far as the petitioner no.3 is concerned, he having retired from service in the year 2014, shall be given consequential benefits on notional basis and fixation of the pension/gratuity be done accordingly.

17. The petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI