Madhya Pradesh High Court
M.P.Housing And Infrastructure ... vs Ravindra Untwale on 3 August, 2021
Author: Sujoy Paul
1 W.A. No.464/2019
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
WA No.464/2019
M.P. Housing Infrastructure Development
Board & Anr. ......................... Appellants
Vs.
Ravindra Untwale ..........................Respondent
...............................................................................................................
Coram:
Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
...............................................................................................................
Presence :
Shri Sunil Jain, learned Senior Counsel with Shri Kushagra
Jain, Advocate for the appellants.
Shri L.C. Patne, learned counsel for the respondent.
...............................................................................................................
Whether approved for reporting : No
...............................................................................................................
ORDER
(03/08/2021)
This intra Court appeal filed under Section 2(1) of Madhya
Pradesh Uchha Nyayalaya (Khand Nyay Peeth Ko Appeal)
Adhiniyam, 2005 assails the order of learned Single Judge dated
26/10/2018 passed in WP No.13497/2018, whereby the learned Single
Judge followed the order passed in WA No.04/2018 (M.P. Housing
Infrastructure Development Board vs. Kamal Kumar Agalcha) and
directed to grant benefits to the respondent by applying the judgment
of Kamal Kumar Agalcha (supra) mutatis mutandis in favour of the
present respondent.
2) Aggrieved, the appellant/employer has filed this writ appeal by
contending that the respondent was appointed as Sub-Engineer on
13/04/1978. He was promoted as Assistant Engineer on 01/03/2008.
Respondent retired on attaining the age of superannuation on
31/03/2010. For the first time, he filed representation seeking benefit
of Time Scale of Pay on 08/01/2018 i.e. after almost 8 years from the
date of retirement. The department, in turn rejected the representation
on 16/03/2018. The respondent filed WP No.13497/2018, which was
disposed of in terms of order of Division Bench in Kamal Kumar
Agalcha (supra).
3) Shri Jain, learned Senior Counsel submits that before the Writ
Court, the employer did not get sufficient opportunity to file reply.
Although six weeks time was granted to file reply on 07/09/2018, on
the next date i.e. 26/10/2018, the matter was finally heard and
decided.
4) The stand of employer is that as per the Circular of the
Department, the engineers were required to pass a departmental
examination, only thereafter they became entitled to get the Time
Scale of Pay. The respondent had not passed said exam. The
impugned order is assailed on yet another ground by contending that
the learned Single Judge has followed the order passed in Kamal
Kumar Agalcha (supra) without considering the fact that there was
enormous delay on the part of the respondent in approaching the
Court. In that event, in the light of judgments of Supreme Court
reported in (1995) 5 SCC 628 (M.R. Gupta vs. Union of India &
Ors.) and (2008) 8 SCC 648 (Union of India & Ors. vs. Tarsem
Singh), at best respondent was entitled to get the arrears of Time
Scale of Pay from 3 years before the date of filing of the writ petition.
The writ petitioner, by no stretch of imagination, was entitled to get
arrears of pay of time scale from the date of entitlement till 3 years
prior to the date of filing of writ petition. Shri Jain submits that he is
assailing the order on merits, but this is his alternative argument
relating to non grant of arrears of pay because of delay in filing the
W.P. by the respondent.
5) During the course of hearing, learned Senior Counsel fairly
submitted that order passed by Division Bench of this Court in Kamal
Kumar Agalcha (supra) was unsuccessfully challenged by the dept.
before Supreme Court and SLP No.46211/2018 was dismissed on
04/01/2019.
6) Per contra, Shri Patne, learned counsel for the respondent
placed heavy reliance on the order of Division Bench in Kamal
Kumar Agalcha (supra) and argued that the departmental circular of
appellant dept. was not an impediment for grant of time scale of pay
as per this judgment. The respondent approached this Court within
reasonable time by filing writ petition from the date his representation
was rejected i.e.16/03/2018. Thus, there was no delay which could
deprive him from fruits/arrears of pay of time scale.
7) No other point is pressed by learned counsel for the parties.
8) We have heard the parties at length and perused the record.
9) The Writ Court granted time to the employer to file reply. Six
weeks time, in our opinion, was sufficient time. Learned Senior
Counsel could not point out any distinguishable feature in the instant
case, because of which, present respondent can be put to a
comparative disadvantageous position qua Kamal Kumar Agalcha
(supra), who approached the Court by filing a writ petition. In other
words, the sole ground raised on merits is that represent respondent
has not passed the departmental examination and, therefore, such an
engineer was not entitled to get the benefit of time scale of pay. In our
view, this point was dealt with in sufficient detail in the case of
Kamal Kumar Agalcha (supra) and the similar argument was not
accepted by the Division Bench. Thus, singular point raised on merits
is devoid of substance and cannot be a reason to interfere with the
order of learned Single Judge. For this reason also, if no reply could
be filed, it will not improve the case of the department because even if
this singular point would have been raised before the Writ Court, the
fate would have been the same in the light of similar order passed in
the case of Kamal Kumar Agalcha (supra).
10) The another point raised by Shri Jain, learned Senior Counsel
deserves serious consideration. This ground is relating to grant of
financial benefits to a litigant, who approached the Court after couple
of years. The point is no more res integra. The Apex Court in M.R.
Gupta (supra) opined as under:
"5. Having heard both sides, we are satisfied that the
Tribunal has missed the real point and overlooked the
crux of the matter. The appellant's grievance that his pay
fixation was not in accordance with the rules, was the
assertion of a continuing wrong against him which gave
rise to a recurring cause of action each time he was paid a
salary which was not computed in accordance with the
rules. So long as the appellant is in service, a fresh cause
of action arises every month when he is paid his monthly
salary on the basis of a wrong computation made
contrary to rules. It is no doubt true that if the appellant's
claim is found correct on merits, he would be entitled to
be paid according to the properly fixed pay scale in the
future and the question of limitation would arise for
recovery of the arrears for the past period. In other
words, the appellant's claim, if any, for recovery of
arrears calculated on the basis of difference in the pay
which has become time barred would not be recoverable,
but he would be entitled to proper fixation of his pay in
accordance with rules and to cessation of a continuing
wrong if on merits his claim is justified. Similarly, any
other consequential relief claimed by him, such as,
promotion etc. would also be subject to the defence of
laches etc. to disentitle him to those reliefs. The pay
fixation can be made only on the basis of the situation
existing on 1.8.1978 without taking into account any
other consequential relief which may be barred by his
laches and the bar of limitation. It is to this limited extent
of proper pay fixation the application cannot be treated as
time barred since it is based on a recurring cause of
action."
(Emphasis Supplied)
11) The ratio decidendi of M.R. Gupta (supra) is followed in
Tarsem Singh (supra). Para-7 of the judgment reads 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."
(Emphasis Supplied)
12) A careful reading of this para leaves no room for any doubt that
the recurring benefits can be of two types. Firstly, a benefit which
does not affect the right of the parties/employees created in the
meantime. Secondly, a pure financial benefit which does not affect
any right of any other employee. Indisputably, the claim of present
respondent falls within the second category. Grant of time scale of pay
will not adversely affect seniority, promotion or financial benefit of
any other employee. The ancillary question is whether in a case of this
nature where petitioner approached the authorities after almost eight
years from his retirement is entitled to get arrears of pay or not. In our
view, had it been a case where the benefit were not recurring in
nature, writ petition would not have been perhaps entertained even if
petitioner would have relied upon the judgment of a similarly situated
person. In such cases, where cause of action or grievance is not
recurring in nature, the Apex Court opined that merely because the
representation is rejected subsequently, it will not give a fresh cause of
action. Such persons, who was sitting tight over his grievance for
couple of years and then suddenly, wake up from his deep slumber
and filed petition was termed as "fence sitter". In (2011) 3 SCC 436
(State of Orissa & Anr. vs. Mamata Mohanty), the Apex Court
opined as under:-
"54. This Court has consistently rejected the contention
that a petition should be considered ignoring the delay
and laches in case the petitioner approaches the Court
after coming to know of the relief granted by the Court in
a similar case as the same cannot furnish a proper
explanation for delay and laches. A litigant cannot wake
up from deep slumber and claim impetus from the
judgment in cases where some diligent person had
approached the Court within a reasonable time. (See: M/s
Rup Diamonds & Ors. vs. Union of India & Ors., AIR
1989 SC 674; State of Karnataka & Ors. v. S.M.
Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal &
Ors. v. State of Haryana & Ors., AIR 1997 SC 2366)."
(Emphasis Supplied)
13) A plain reading of this judgment shows that had it been a case
not involving any recurring cause of action, the petition would not
have been entertained. Since its a matter of recurring cause of action,
the respondent deserves the benefit of time scale of pay as per
principle laid down in Kamal Kumar Agalcha (supra).
14) The Apex Court in M.R. Gupta and Tarsem Singh (supra)
made it clear that in such cases where employee belatedly approached
the Court, High Court will restrict the consequential relief relating to
arrears to a period of three years prior to the date of filing of the writ
petition (26/06/2018).
15) As a consequence, we deem it proper to modify the order of
learned Single Judge dated 26/10/2018 and make it clear that
although respondent will be entitled to get time scale of pay from due
date, arrears of the same will be payable to him only from three years
prior to the date of filing of the writ petition. Needless to emphasise,
the respondent will be entitled to notional fixation of the time scale of
pay from the date of entitlement, but shall get the arrears only from
the date three years prior to the date of filing of the writ petition
(26/06/2018). To this extent, impugned order dated 26/10/2018 stands
modified.
16) The writ appeal is partly allowed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
soumya
Digitally signed
by SOUMYA
RANJAN DALAI
Date: 2021.08.04
13:58:30 +05'30'
