K.V. Padmanabhan and Others Vs. Union of India Represented by the Secretary to the Govt of India and Another - Court Judgment

Mrs. K. Noorjehan, Administrative Member:

1. The applicants were granted local officiating promotion in the post of Deputy General Manager are seeking a declaration for their entitlement to get the benefit of one increment in the scale of pay of Deputy General Manager as per Clause II (v) of Annexure A2.

2. The applicants have challenged Clause X of Annexure A-8 letter which reads as follows:-

"10. Whether the benefits of extra increments will be granted to executives on officiating promotion to the higher post of the same scale in which they have been placed under IDA scale up gradation?

Ans: No. The benefit of extra increment under the executive promotion policy will be granted to the executives only in cases of ad-hoc or regular promotion ordered by the Corporate Office".

3. The applicants filed M.A 254/13 to condone a delay of 1743 days in filing the O.A to which the respondents moved their objection statement. Hence, without going into the merits of the O.A the M.A for condonation of delay is taken up for consideration. The applicants are challenging Annexure A-8 clarificatory letter dated 30.05.2007 which was issued to clarify certain points in the Annexure A-2 O.M outlining the salient features of time bound/post based executive promotional policy for Group B level officers of BSNL. To justify the delay of 1743 days in filing the O.A, the applicants contend that the effect of Annexure A-8 letter gives rise to a continuing and recurring cause of action and hence it is not hit by section 21 of the Administrative Tribunal Act. In support of their contention they placed reliance on the following judgments of the Apex Court:-

i. In (2008) 8 SCC 648, Union of India and Ors V. Tarsem Singh, it is observed by the Hon'ble Supreme Court as follows:-

"To Summarise, normally, a belated service related claim will be rejected on the gound of delay and latches (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. "

ii. In (2010) 12 SCC 538, State of Madhya Pradesh vs. Yogendra Srivastava, it is observed by the Hon'ble Supreme Court in paragraph 18 as follows:-

"Where the issue relates to payment or fixation of salary or any allownace, the challenge is not barred by limitation or the doctrine of latches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment".

iii. In (1995) 5 SCC 628, M.R Gupta vs Union of India, it is observed by the Hon'ble High Court as follows:

"It is no doubt true that if the appellants' claim is correct on merit he will be entitled to be paid according to the properly fixed pay scale in future and the question of limitation would arise for recovery of arrears for the past period. The pay fixation can be made only on the basis of the situation existing on 01.08.1978 without taking into account any other consequential relief which may be barred by his latches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred."

4. The applicants aver that even though Annexure A-8 O.M was issued on 30.05.2007, the cause of action arose only when they were promoted to the post of DGM. However, they do concede that 4th applicant was promoted on 30.10.2008 but the first applicant was promoted only on 20.04.2011. The applicants were waiting for favorable response from the Corporate Office as the matter was taken by their Association and in the Joint Consultative Meeting. They prayed for condonation of delay as by the delay, no third party right is created and the applicants are put to incurring loss on day to day basis. Besides, they have a substantially good case on merits.

5. The respondents contested the M.A by filing reply. It is submitted that there is no continuing cause of action in favour of the applicants, therefore, the OA is barred by limitation. They submitted that the applicants superannuated on 31.3.2011, 27.5.2011, 30.6.2011, 30.1.2011, 31.8.2010, 31.3.2010 and 31.10.2010 respectively. The ratio of the decisions referred to by the applicants cannot be applied in the present case. It is settled law that the continuing wrong, if any, with regard to the payment or fixation of salary or any allowance ends on the date when the employee superannuates from service. Therefore, the OA is hit by the law of limitation. The applicants were given officiating promotion as DGMs by the Chief General Manager, Kerala Circle. The applicants did not submit any representation to the authority who ordered the promotion. Representing directly to a higher authority constitutes misconduct. Therefore, the representations are the products of an afterthought and an attempt to tide over the law of limitation. They further submitted that repeated unsuccessful representations not provided by law, do not enlarge the period of limitation. They referred to the decision reported in AIR 2012 Del. 162, according to which waiting for the result of the representation beyond six months or making further representations does not push the point of time when the clock of limitation starts running. Therefore, according to them, no cogent reason is made out in the MA to condone the delay in filing the O.A. They submitted that it is settled law that continuing wrong if any, with regard to the payment of or fixation of salary or any allowance ends on the date when the employee is superannuated from service. In this context they cited the case of M.R Gupta vs Union of India reported in (1995) 5 SCC 628, wherein the Hon'ble High Court held as follows:-

"6. The Tribunal misdirected itself when it treated the appellant's claim as "one time action" meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules."

6. Hence, according to the respondents in so far as applicants in the O.A are concerned the alleged continuing wrong is anterior to the respective period of superannuation.

7. We have heard the learned counsel for the parties and perused the records.

8. The applicants have produced Annexure A-7/1 to A/7/16 series to show that they have been promoted to the grade of Executive (JAG) and posted to officiate locally as Dy General Manager for a period not exceeding 90 days. Among the 7 applicants, only the first and third applicants were regular in the grade of Executive STS and both of them were so promoted on officiating basis on 20th and 21st April 2011 and they retired in May-June 2011. The remaining applicants, who were adhoc in the grade of Executive STS, were promoted as Dy General Manager on officiating basis by the Chief General Manager, Kerala Circle for a period not exceeding 90 days on different spells from 16.10.2008 onwards. However, as a result of Annexure A-2 dated 18.01.2007, the time bound/post based executive promotion policy for Group B officers of BSNL introduced by the BSNL Corporte office, all the applicants got their financial up gradation in the scale of pay of Rs. 32900-58000/- attached to the post of DGM. The above facts show very clearly that all the applicants were promoted on different dates from 30.10.2008 i.e; well after the receipt of Annexure A-8 clarificatory letter dated 30.05.2007 which is under challenge in this Original Application. Therefore, the cause of action has arisen from 2008 onwards. They did have plenty of time and opportunity to take up the matter with the CGM Kerala Circle and the CMD BSNL, well before their superannuation.

9. Section 21 of the Administrative Tribunal Act, 1985 provides as under:

Limitation: (1) A Tribunal shall not admit an application- a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

According to the above provisions, the applicant can file the O.A within one year from the date of the impugned order or if any representation has been filed, six months from such representation, if the same has not been replied to, when it would mean deemed rejection of the representation.

10 In this case, the applicants had not approached the concerned respondents for grant of the benefits under the provisions of Annx.A2 at the time of their officiating promotion to the post DGM. During their service period there were representations filed in later part of 2009 or early 2010. The period of six months was over by 2011 end itself even if their representation was considered to have been filed in time. They have chosen to file the O.A after superannuation that too after a delay of 1743 days. Therefore, in our considered view this O.A for seeking the relief of one increment in the scale of pay of DGM on their local officiating promotion to the said post is barred by limitation.

11. In the case of State of Haryana vs Chandra Mani and others reported in (1996) 3 SCC 132; it is held that "to the state government certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. Xxxxxxxxxx Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."

In the case of S.S.Rathore Vs State of M.P, AIR 1990 SC, it has been made clear that repeated unsuccessful representations do not extend the period of limitation. In Bhoop Singh Vs Union of India, AIR 1992 SC 1414, it was held by the Apex Court that 'it is expected of the Govt servant who has legitimate claim to approach the Court for the relief he seeks within a reasonable period. This is necessary to avoid dislocating the administrative set up. The impact on the administrative set up and on other employees is strong reason for the consideration of stale claim', In 1996 (1) SCC (LandS) 205, Hon'ble Apex Court held that 'the Tribunal fell in patent error in brushing aside the question of limitation by observing that the respondents have been making representation from time to time and as such the limitation would not come in his way'.

12. Continuing cause of action in case of fixation of pay is understandable if the applicants are in service. The same cannot be stretched after retirement. Though pay has an impact on fixation of pension, in the instant case, there being no discrepancy in fixation of pension, the continuing cause of action in fixation of pension does not apply.

13. In view of the settled legal position and facts and circumstances of this case, we are of the opinion that this O.A is hit by limitation. Therefore, the M.A filed by the applicants for condonation of delay in filing the O.A is dismissed at the stage of admission. Since the M.A for condonation of delay is dismissed the OA filed by the applicants has become infructuous.