| SooperKanoon Citation | sooperkanoon.com/915388 |
| Court | Kolkata Appellate High Court |
| Decided On | Dec-01-2010 |
| Case Number | W.P. No. 6252 (W) of 2008 |
| Judge | Tapen Sen, J. |
| Appellant | Kashi Nath Bose and ors. |
| Respondent | The State of West Bengal and ors. |
| Appellant Advocate | Mr. Asok De; Mr. Sougata Bhattacharya, Advs |
| Respondent Advocate | Mr. L.K. Gupta; Mr. Ranajit Chatterjee; Mr. Nilratan Banerjee; Mr. P.Dey, Advs |
| Cases Referred | K.I. Shephard and Ors. vs. Union of India and Ors. |
2. According to the Petitioners, they were appointed along with the Respondent Nos. 14 to 40 on the post of Lower Division Clerks (on adhoc basis) during the period ranging from 1979 to 1981. Thereafter the Petitioners, along with these Respondents, were given the scale of Rs. 400-900 plus allowances as admissible with effect from 10.10.1981 vide Office Order No. S/372 dated 31.12.1981. These appointments were made on substantive basis as they had already worked on adhoc basis. By reason of the same Order, another batch of employees, namely the Respondent Nos. 5 to 13 were appointed as LDC in the scale of Rs. 400-900 with effect from 10.10.1981 but before such appointment on the post of LDC on substantive basis, they had been working on the post of Peons. By reason of this Order dated 31.12.1981, those Respondents were appointed on the post of LDC from the post of Peon whereas the Petitioners, by the same Office Order, were appointed on the post of LDC on substantive basis from the post of LDC on adhoc basis. The Respondent Nos. 5 to 13 were confirmed with effect from 1.8.1981 and were subsequently appointed on the post of LDC vide the aforementioned Order No. 372 dated 31.12.1981.
3. The revision of pay scales of Officers and employees was introduced vide Memo dated 22.6.1981 (Memo No. 55-Edn (HS)/Edn (HS)- 3S/22/81). The last paragraph of the said Memo reads as follows:- It is requested that the Council may please be moved to draw the terms and conditions for coming over of all other staff to the revised scale of pay and the same be submitted to the State Government for approval, as required under Section 17(2) of the West Bengal Council of Higher Secondary Act, 1975(West Bengal Act VIII of 1975) (Quoted)
4. According to the Petitioners, the posts of LDCs were divided into two categories namely :-
(1) Steno-Typist/Accounts Clerk/Typist Gr. I/Telephone Operator/Mahari Gr. I/Proof Reader/Routine Grade Clerk/Administrator/Mechanic Gr.I.
(2) Junior Assistant/Cashier/Field Assistant.
5. The Petitioners have stated that the Council thereafter made a Representation without implementing the revision of pay scales as was introduced by Memo dated 22.6.1981 for change of scale of pay of the employees of the Council and pursuant to such request, the Memo dated 22.6.1981 referred to above, was cancelled and a new pay scale was introduced by Notification dated 18.12.1981 which was issued under the signature of the Deputy Secretary, Department of Education, Higher Secondary Branch, Government of West Bengal By virtue of the said Notification dated 18.12.1981, the revision of pay scales of the Officers and employees of the Council was approved in terms of Section 17(2) of the West Bengal Council of Higher Secondary Education Act, 1975 and accordingly, the scale of LDCs, in terms of the said Notification dated 18.12.1981, was revised at Rs. 400-900. The said Notification dated 18.12.1981 is Annexure-P/4.
6. The Respondent Nos. 5 to 13 were appointed, as stated above, vide Officer Order dated 31.12.1981 in the pay scale of Rs. 400-900 and the Petitioners, along with the Respondent Nos. 14 to 40, who had been working as LDC on adhoc basis from 1989 onwards, were substantively appointed on the post of LDC from 10.10.1981 and were also given the scale of pay of Rs. 400-900. Thereafter on 14.1.1982, the Council intimated that the Government of West Bengal had accorded approval to the revised scale of pay and therefore, the Officers and employees of the Council were sanctioned the revised scale of pay subject to exercising of option in a prescribed form. The proviso to para 4 of the said Office Order dated 14.1.1982 reads as follows:-
Provided that pay in respect of LDCs and Typists already in service of the Council prior to 10.10.1981 shall be fixed in such a manner that their basic pay after refixation of pay in the revised scales shall not be less than Rs.450/- per month as on 1.4.1981. (Quoted)
7. According to the further case of the Petitioners, the scale of pay of persons who were already in employment of the Council on the post of LDCs and Typists prior to 10.10.1981, were directed, in terms of the proviso to para 4 above, to be fixed at Rs. 450/- on 1.4.1981 but the Respondents failed to fix the basic pay of the Petitioners and the Respondent Nos. 14 to 40 at Rs. 450/- with effect from 1.4.1981 although they were working on the post of LDC prior to 10.10.1981.
8. The Petitioners further case is that in contravention to the aforementioned proviso to para 4 of the said Office Order dated 14.1.1982, the Petitioners and the Respondent Nos. 14 to 40 did not get the sanction of their basic pay of Rs. 450/- with effect from 10.10.1981 and on the contrary, their basic pay was fixed at Rs. 400 with effect from 10.10.1981.
9. Thereafter, in partial modification of Office Memo No. S/372 dated 31.12.1981, another Office Order, being S/Estb/70 dated 15.6.1982, was issued by the Secretary of the Council by which the scale of Respondent Nos. 5 to 13 was fixed at Rs. 450/- per month w.e.f. 10.10.1981 which, according to the Petitioners, was discriminatory because the Council deprived the claims of the Petitioners as well as of the Private Respondent No. 14 to 40 in spite of the existence of the proviso to para 4 of the Office Order dated 14.1.1982 quoted above.
10. Thus, according to the case of the Petitioners, by resorting to hostile discrimination, the concerned authorities refixed the basic pay of the Respondent Nos. 5 to 13 at Rs. 450/- per month w.e.f. 10.10.1981 but the Petitioners and the Respondent Nos. 4 to 40, who were similarly situated, were not given the benefit of the Order dated 15.6.1982 as was given to the Respondent Nos. 5 to 13 vide the said Office Order dated 15.6.1982 (AnnexureP/6).
11. According to the Petitioners, this was in violation of the right to equity and therefore they made representations before the Council praying inter alia that their scales of pay be fixed at basic pay of Rs. 450/- w.e.f. 10.10.1981 as was granted to the Respondent Nos. 5 to 13. The Respondent authorities did not pay heed to the prayers of the Petitioners. In para 14, the Petitioners have stated as follows:
14. Your petitioners state that the Government of West Bengal had no occasion to consider the claim of the petitioners and respondent Nos.4 to 14 on refixation of basic pay of Rs.450/- in the revised scale of pay from 10.10.1981 as was sanctioned in favour of the respondent no.5 to 13 and 39 other Lower Division Clerks of the Council as because the council kept on sending correspondences to the concerned authorities of Government of West Bengal in order to get approval of fixation of basic pay of those 39 LDC and also respondent no.5 to 13. While considering those correspondences made by the Council as indicated above, the Government of West Bengal issued a letter dated 28.12.1990 addressed to the Secretary of the Council wherein the last two paragraphs read as follows:
Three advance increments reported to have been given in favour of at least 38 Lower Division Clerks/Typists in the revised scale of pay of Rs.400- 900/- and thereby fixing their pay at Rs.450.-with effect from 1.4.1981 who were in service prior to 10.10.1981 on consideration of their seniority in service. It is not understood as to why such an extraordinary benefit was granted in favour of a particular group of employees. I am therefore to request you kindly to justify with sufficient reasons the actions of the Council in this regard.
It appears from the contents of the said Memo dated 28.12.1990 that on correspondences made by the Council to the concerned authorities of the Government of West Bengal, Council remained confined for sanction of basic pay of Rs.450/- in favour of those 38 Lower Division Clerks and respondent nos.5 to 13 with effect from 1.4.1981. As because the claim of the petitioners and the private respondent nos.14 to 40 of basic pay of Rs.450/- with effect from 10.10.1981 being the similarly circumstanced employees were not placed before the concerned authorities of the Government of West Bengal by the Council for the reasons best known to them causing the respective claims of the writ petitioners remained non-considered by the State Government in view of the latches on the part of the Council in forwarding the said issue before the State Government.
(Quoted)
12. Thereafter the Council received a Memo dated 29.4.1992 which was issued by the authorities of the Department of Education, Government of West Bengal and subsequently, a meeting of the Council was held on 27.5.1992 wherein the entire issue was discussed including the contents of the Memo of the Department of Education dated 29.4.1992. According to the Petitioners, from the Minutes of the said Meeting dated 27.5.1992, it would appear that the Council had been clearly advised by a Memo issued by the Department of Education on 29.4.1992, that the pay of those 49 employees to whom advance increments were granted, be first revised w.e.f. 1.4.1979 in terms of the relevant Government Orders and the overdrawn amounts be calculated up to the date of requisition of the matter in respect of each such employee and then the matter be taken by the Department of Finance for waiver of recovery. The last portion of the said Minutes of the meeting dated 27.5.1992 has been quoted by the Petitioners at page 25 and the same reads as follows:-
The matter was discussed at length and the members present opined that had this decision of the Government been communicated to the Council moved it for according necessary approval for such fixation the matter would not have been so complicated and comulatively effect of such overdrawal could have been avoided. The matter has now become very complicated both for the Council and for the employees concerned. However, keeping in view of the consequences of such wrong fixation the members present opined that necessary calculation for refixation of their pay in the manner prescribed by the Government in the aforesaid letter and amount overdrawn for such employees be made immediately by a Committee to be conducted for the purpose.
(Quoted)
13. According to the Petitioners, no such committee was formed with regard to the fixation of pay although in the said meeting of the Council on 27.5.1992 , representatives of the Karmachari Samity, being the Employees Union, were present as special invitees but the claim of the Petitioners as well as of the Respondent No. 14 to 40 were not at all discussed nor decided although they were similarly placed as the Respondent Nos. 5 to 13 and although they were also entitled to get the initial starting pay of Rs. 450/- w.e.f. 10.10.1981.
14. Thereafter vide letter dated 26.11.1996, the Officer on Special Duty-cum-Ex officio Deputy Secretary, Department of Education, Higher Secondary Branch, informed the concerned authorities that Now the Government has, after careful consideration, been pleased to approve the fixation of pay of those 49 Lower Division Clerks of the Council at Rs.450/- as a case of fait accompli subject to following conditions:
(i) That fresh recruitees who joined after pay revision are not allowed this benefit, and
(ii) That this benefit shall not in any way be regarded as higher initial start for the post.
The said letter is Annexure-P/9.
15. According to the further case of the Petitioners, the said letter deals only with the case of the Respondent Nos. 5 to 13 and also a group of 39 LDCs whose cases were considered as fait accomplii but the case of the Petitioners were never considered at any stage of fixation of basic pay of Rs. 450/- in the revised scale of pay w.e.f. 10.10.1981. The Council never rectified this anomaly with regard to the Petitioners and of the Respondent Nos. 14 to 40 and never forwarded the matter to the Government.
16. In paras 20 to 23, the Petitioners have further highlighted their grievances which are quoted below:-
20. Your petitioners state that the respondent authorities hereinabove in arbitrary, malafide, high-handed and extraneous and illegal way have deprived of the petitioners from getting the benefit of fixation of basic pay of Rs.450/- without any reason and/or reasonable cause and by not reconsidering the requests and deliberations made on behalf of the petitioners and private respondents nos. 14 to 40 herein for fixation of pay of the petitioners at Rs.450/- and thus the respondent authorities have acted not only in violation of the natural justice and principle of equity but also in violation of all cannon justice to which the petitioners were/are entitled to.
21. Your petitioners state that by not fixing the basic scale of pay of the petitioners and the private respondent nos.14 to 40 at Rs.450/- the Council arbitrarily created two groups within same cadre of LDCs on the basis of initial start of basic pay between the respondents nos.5 to 14 and 38 LDCs on one side and the petitioners herein along with private respondent Nos.14 to 40 on another side. After bringing the petitioners, private respondent nos. 14 to 40 and also the private respondent nos.5 to 13 in same platform by substantively appointing them as Lower Division Clerks with effect from 10.10.1981 there cannot be any further division among those Lower Division Clerks in fixation of basic pay. 22. It is pertinent to mention herein that the subsequent revision of scale of pay under ROPA90 came into force with effect from 1.1.1986. The revised scale of LDC was Rs.1210-35-1350-40-1550-50-1950-60-2250-70-2450. The scale of pay of the respondent nos.5 to 13 was thus revised scale of pay of Rs.15,500/- in 1986 and the revised scale of pay of the petitioners and the respondent nos.14 to 40 was thus fixed at Rs.1350/- in 1986 notionally. Similarly due to difference of basic pay with effect from 10.10.1981 amongst LDCs substantively appointed with effect from 10.10.1981 writ petitioners pay was fixed below the private respondent no.5 to 13 when pay revision took place under ROPA 98 notionally from 1996.
23. Your petitioners further state that the respondent nos.5 to 13 and the petitioners already been promoted to the posts of Upper Division Clerk in February 1995 to January 1996 and due to discriminatory refixation of pay with effect from 10.10.1981, such different in pay while working as at promotional post has become phenomenal as on January 1996. (Quoted)
17. According to the Petitioners, 29 persons out of these 18 LDCs who were substantively appointed w.e.f. 10.10.1981 filed W.P. 529 (W) of 1998 praying for fixation of the basic pay at Rs. 450/- w.e.f. 10.10.1981 as was given to the Respondent Nos. 5 to 13. The matter ultimately went upto the Division Bench vide Mat No. 935 of 2006 and the said Appeal was allowed by a Division Bench comprising of the Honble Mr. Justice Pranab Kumar Chottapadhyay sitting with the Honble Mr. Justice Arunava Basu and in which, their Lordships, inter alia, held as follows:-
In view of the aforementioned reasons, we are unable to affirm the decision of the learned Single Judge, as, in our opinion, the said decision of the learned Single Judge cannot be sustained in the eye of law. We also hold that the appellants herein are entitled to enjoy the benefit of fixation of pay at Rs.450/- per month like other 49 similarly placed Lower Division Clerks of the Council including the respondents Nos.5 to 14 herein w.e.f.10.10.1981.
We, therefore, direct the respondent authorities, particularly the respondent nos.2,3 and 4 herein to refix the pay of the appellants at Rs.450/- per month like other 49 similarly placed Lower Division Clerks including the respondent Nos.5 to 14 herein w.e.f.10.10.1981 and grant all other consequential benefits due and payable to the appellants on account of subsequent revision of the pay scales without any further delay but positively within a period of two weeks from the date of communication of this order. The aforesaid respondents are directed to calculate the admissible arrear dues payable to the appellants within a period of three weeks from the date of refixation of the pay of the appellants in terms of this order and disburse the same to the said appellants within three weeks thereafter.
The competent authority of the State of West Bengal, particularly, the Secretary, School Education Department is directed to accord necessary approval to the aforesaid fixation of pay of the appellants in terms of this order at an early date but positively within 10 days from the date of receiving the relevant papers and documents from the respondent-council in respect of the appellants herein. The appropriate authority of the State of West Bengal is also directed to sanction and provide necessary funds to the respondent Nos.2,3 and 4 immediately so that the said respondents can disburse necessary payment to the appellants herein in terms of this order within the time mentioned hereinabove.
(Quoted)
The said Judgment is Annexure P/10.
18. Thereafter the matter was taken up to the Honble Supreme Court by the Respondent Nos. 3 and 4 (the Council) vide SLP (civil) No. 10087/2007 challenging the Judgment and Order dated 18.4.2007 quoted above. The said SLP was dismissed on 11.7.2007 vide Annexure-P/11.
19. Thereafter the State of West Bengal also preferred an Appeal against the same Judgment dated 18.4.2007 and on 5.10.2007, the said SLP being SLP(civil) No. 18012 of 2007 was also dismissed vide Annexure-P/12, on 5.10.2007.
20. It is stated that in compliance of the Judgment of the Division Bench which stood confirmed by the dismissal of the two SLPs referred to above, the Department of Finance, Government of West Bengal sanctioned necessary funds for payment to the Respondent Nos. 14 to 40 vide Order No. 129-Group (Service) (PS) dated 17.1.2008 and thereafter, the Officer on Special Duty and Ex-officio Deputy Secretary, Government of West Bengal, Department of School Education, issued memo dated 22.1.2008/24.1.2008 which was addressed to the concerned authorities of the Council and by which, he allowed the Private Respondent Nos. 14 to 40 advance increments to each of them thereby raising their pay to Rs. 450 from 10.10.1981 together with all consequential benefits and at the same time, they gave option to them to come under the ROPA Rules and ultimately, by an Office Order dated 18.3.2008, the Officer on Special Duty and Ex-officio Deputy Secretary addressed a letter to the Secretary of the Council directing him to revise the pay of the Respondent Nos. 14 to 40 in compliance of the Judgment of the Division Bench which was passed on 18.4.2007 after deducting the overdrawn amounts if any, and to pay the admissible arrears of salary since 10.10.1981. The letter dated 22.1.2008/24.1.2008 and another letter dated 18.3.2008 issued by the Respondent No. 2 have been marked as Annexure-P/13.
21. The Writ Petitioners, being similarly situated and not having received any benefits, filed a representation dated 2.1.2008 before the Respondent Nos. 1 to 4 wherein they stated that in view of the Judgment and Order passed by the Division Bench which stood confirmed by the dismissal of the two SLPs, they were also entitled to the basic pay of Rs. 450/- w.e.f. 10.10.1981. This Representation is Annexure-P/14.
22. In reply to the aforementioned, the Secretary of the Council by his letter dated 15.1.2008 refused to grant and sanction the fixation of basic pay to the Petitioners w.e.f. 10.10.1981 as was given to the Private Respondent Nos. 5 to 13 and to the Private Respondent Nos. 14 to 40 and merely advised them to go to a Court of law for redressal of their grievances. This Order dated 15.1.2008 is Annexure-P/15. It reads as follows:-
WEST BENGAL COUNCIL OF HIGHER SECONDARY EDUCATION VIDYASAGAR BHAVAN, 9/2, BLOCK DJ, SECTOR-II SALT LAKE, KOLKTA- 700091.
Est/079/2008 Dated: 15.01.2008 From: The Secretary,
W. B. Council of H. S. Education Shri Kashinath Bose & 22 others Employees of the W. B. Council of H. S. Education, Vidyasagar Bhavan, Salt Lake, Kolkata-700091.
Re: Prayer for sanctioning scale of pay of Rs.450/- with effect from 10.10.1981 in view of the order passed by the Honble Division Bench of Kolkata High Court and Supreme Court in case of similarly circumstanced employees.
With reference to your representation dated 02.01.2008 I am directed to inform you to pray before the Honble Court of Law for redressal of your grievances.
Thanking you,
Yours faithfully
SECRETARY
Copy forwarded to:
The Dy. Secretary(Finance)
The Dy. Secretary(Administration)
Presidents Unit
Secretarys Unit
invisible SECRETARY
(Quoted)
23. An Affidavit-in-opposition has been filed by the Respondent Nos. 3 and 4 in which while narrating the facts relating to the appointments of the Petitioners and the manner thereof as well as while narrating similar facts in respect of the Respondent Nos. 5 to 40, have stated that it is untrue that the Petitioners made several appeals to the authorities for redressal of their grievances regarding disparity and discrimination. According to them, the correct position is that these Petitioners never made any such representations or appeals but accepted their pay as was fixed on the basis of the Order dated 31.12.1981 without any murmur, month by month, year after year for 26 years and it was only after dismissal of the two SLPs that the Writ Petitioners, for the first time, submitted a representation on 2.1.2008 claiming similar benefits as was given to the Respondent Nos. 14 to 40 on the basis of the Judgment of the Division Bench. They did not give any explanations as to what had prevented them from approaching the authorities or moving the Court for all these years when the Respondents had approached the High Court as long ago as in 1998. These Respondents have therefore stated that even assuming (but not admitting) that the Petitioners are identically placed with those who moved the High Court and which culminated in the Judgment of the Division Bench, they cannot be given any benefit, having slept over their alleged rights for 26 years and having woken up from their slumber after implementation of the Judgment of the Division Bench which was confirmed by the dismissal of the two SLPs referred to above. They have further stated that the Respondent-Council is not in a position to meet such a huge financial liability that will arise in the event the writ succeeds.
24. Mr. L.K. Gupta, learned Counsel appearing for the Respondents placed reliance on a Judgment of the Supreme Court passed in the case of Shri Vallabh Glass Works Ltd. and Anr. v. Union of India and ors. reported in AIR 1984 SC 971. Referring to Para 9 thereof, he stated that the Writ Petition ought to be dismissed on the ground of such delay on the part of the Petitioners. The relevant portions of Para 9 of the said Judgment inter alia reads as follows:-
Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Art. 226 of the Constitution, it is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them but no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petitioner had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1976 was filed, should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax Officer, Banaras v. Kanhaiya Lal Mukandlal Saraf 1959 SCR 1350: (AIR 1959 SC 135)). We do not also find that the conduct of the appellants if of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.
(Quoted)
25. Before proceeding with the submissions of Mr. Gupta, this Court, at the very outset would like to mention that the aforementioned Judgment of the Supreme Court was passed in respect of a dispute pertaining to excess duty paid on the basis of assessments and recovery thereof.
26. Learned Counsel further states that even if the High Court has the power to condone the delay, it should bear in mind the burden of the State and must also not forget that such a burden may ultimately be prejudicial to the general public. Learned Counsel cited another case of the Supreme Court passed in the case of A.P. Steel Re-Rolling Mill Ltd. vs. State of Kerala and Others reported in (2007) 2 SCC 725. He referred to para-40 thereof and submitted that the benefit of the Judgment of the High Court should not automatically be extended to the Petitioners considering the fact that they had chosen to sit over the matter for such a long period of time. Para-40 the said Judgment reads as follows:-
40. The benefit of a judgment is not extended to a case automatically. While granting relief in a Writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.
(Quoted)
27. Learned Counsel then relied upon the Judgment passed in the case of U.P. Jal Nigam and Another vs. Jaswant Singh and Another reported in (2006) 11 SCC 464. Learned Counsel relied on paragraphs 6, 7, 8, 9, 12 and 13 of the said Judgment. They are reproduced below and they read as follows:
6. The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30-6-25 and 31-7-2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not?
7. Learned Senior Counsel for the appellants has invited our attention to various decision to impress upon that persons who are guilty of such laches and acquiesced with the situation should not be granted any relief because it is going to cost the Nigam a heavy financial burden to the tune of Rs. 17,80,43,108. Therefore, relief should be confined to those persons who were continuing in service and filed their writ petitions in time but not to all and sundry who woke up to file the writ petitioners much after their retirement. In this connection, our attention was invited to a decision of this Court in Rup diamonds v. Union of India wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows: (SCC pp. 356-57)
Petitioners are reagitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody elses case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after almost a year after the first rejection. as observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the Government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners case in any such appeal.
8. Out attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under: (SCC p. 268) although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.
9. Similarly in Jagdish Lal v. State of Haryana this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case. The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.
12. The statement of law has also been summarised in Halsburys Laws of England, para 911, p. 395 as follows:
In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimants part; and
(ii) any change of position that has occurred on the defendants part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant had become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he had done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.
13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?
(Quoted)
28. Mr. Ashoke Dey, in reply to the aforementioned contentions, firstly stated that the grievance of the Petitioners is that their pay fixation has not been made as has been given to the others and therefore, it is a continuing wrong against them and each month the cause of action recurs whenever they are paid salary which is not in accordance with what has been paid to others and therefore every month a fresh cause of action arises.
29. This Court is inclined to agree with the submissions of Mr. Ashoke Dey, learned Senior Counsel appearing on behalf of the Petitioners. In a Judgment passed in the case of M.R. Gupta v. Union of India & Ors. reported in (1995)5 SCC 628, it has been held in para 5 that in a matter pertaining to fixation of pay which is not in accordance with the Rules, a fresh cause of action arises every month when he is paid salary. So far as other reliefs are concerned, being consequential reliefs such as promotion etc., they could be subject to the defence of delay or laches and therefore to the extent of proper pay fixation, the same cannot be treated as time barred since it is based on a recurring cause of action. Para 5 of the said Judgment reads as follows:-
5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellants 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 arised 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 appellants 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 appellants 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.
(Quoted)
30. In another Judgment of the Honble Supreme Court passed in the case of K.I. Shephard and Ors. vs. Union of India and Ors. reported in AIR 1988 SC 686, it has been held in Para-19 that merely because some people did not come to the Court that by itself is not a ground to deprive them of relief. Para-19 of the said Judgment reads as follows:-
19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to Court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. Ordinarily the successful parties should have been entitled to costs but in view of the fact that they are going back to employment, we do not propose to make orders of costs against their employees. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves a live to the human problem involved in it.
(Quoted)
31. In the State of Karnataka and Others v. C. Lalitha reported in (2006) 2 SCC 747, it has been held in Para-29 thereof that service jurisprudence evolved by the Supreme Court from time to time postulates that all persons similarly situated should be treated similarly and only because one person has approached the Court that would not mean that others who are similarly situated, should be treated differently. Para-29 of the said Judgment reads as follows:- 29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.
(Quoted)
32. Let it further be recorded that the point of delay was also agitated before the Division Bench by the Respondents and it was not accepted. This Judgment became final and stood confirmed on the dismissal of the SLPs. Therefore such a plea cannot be allowed to be agitated at this point of time. The relevant portions of the Judgment of the Division Bench are as follows:-
it is not in dispute that after 10.10.1981 the appellants, respondent Nos. 5 to 14 and the other 38 Lower Division Clerks merged into same cadre of Lower Division Clerks and therefore, the respondent-council after bringing all the aforesaid employees into the same platform cannot create any artificial classification. The learned Single Judge, however, dismissed the writ petition on the grounds that there was delay of 18 years in filing the writ petition by the appellants herein and the claims of the appellants are stale. The learned Single Judge also held that refixation of basic pay at Rs. 450/- in favour of the respondent Nos. 5 to 14 may be an act of mistake or aberration on the part of the statutory authorities but such mistake cannot be perpetuated by the order of the court.
From the records we find that the Higher Education Department, Government of West Bengal by the Memo dated 28th November, 1996 approved the fixation of pay of 49 Lower Division Clerks of the Council including the respondent Nos. 5 to 14. The competent authority of the respondent-council unfortunately did not forward the claims of the appellants regarding fixation of pay at Rs. 450/- per month to the School Education Department, government of West Bengal even after issuance of the aforesaid Memo dated 28th November, 1996 whereby and whereunder the School Education Department approved the fixation of pay of 49 Lower Division Clerks of the Council at Rs. 450/- per month as a case of fait accompli. The appellants herein reasonably expected that the respondentcouncil being a model employer will not allow any discrimination in the matter of fixation of pay in respect of same set of employees. The School Education Department, Government of West Bengal took a reasonable stand by approving the fixation of pay of all 49 Lower Division Clerks of the council at Rs. 450/- per month as a case of fait accompli since the council only pursued the claims of the said 49 Lower Division Clerks including the respondent Nos. 5 to 14. The respondent-council should not have ignored the rightful and legitimate claims of the appellants regarding fixation of pay at Rs. 450/- per month like other 49 similarly placed Lower Division Clerks of the said council.
It is most surprising that the competent authority of the respondentcouncil did not even invite the attention of the competent authority of the Government of West Bengal to the aforesaid fact that the appellants herein being the members of the same cadre of Lower Division Clerks of the council were and are entitled to the benefit of fixation of higher initial pay at Rs. 450/-. The School Education Department, Government of West Bengal had no knowledge in respect of the aforesaid discriminatory treatment of the respondent-council towards the appellants herein. The respondent-council by allowing the fixation of pay at Rs. 450/- to 49 Lower Division Clerks including the respondent Nos. 5 to 14 herein and excluding the appellants have acted in a discriminatory manner and in clear violation of the principles of natural justice and fair play. The School Education Department, Government of West Bengal by issuing the Memo dated 28th November, 1996 not only approved the benefit of fixation of pay of 49 Lower Division Clerks at Rs. 450/- but also made it clear that such benefit will not be available only to the fresh recruits who joined after the pay revision. Therefore, in view of the aforesaid Memo dated 28th November, 1996, the appellants herein not being the fresh recruits and since joined before the cut off date were also entitled to enjoy the benefit of pay fixation at Rs. 450/- per month like the said 49 Lower Division Clerks.
The appellants herein submitted demand for justice on 18th November, 1997 claiming fixation of pay at Rs. 450/- like similarly placed other 49 Lower Division Clerks of the council who were granted the said benefit of pay fixation by the Government of West Bengal by the aforesaid Memo dated 28th November, 1996. The said demand of the appellants was, however, not taken into consideration either by the appropriate authority of the council or the Government of West Bengal. Accordingly, the appellants filed the present writ petition in the year 1998.
In the aforesaid circumstances, we do not consider that there was any delay on the part of the appellants herein to approach this Honble court for adjudication of the grievances by filing the writ petition. However, we are also of the opinion that the rightful and legitimate claims of the appellants should not be defeated only on the ground of delay alone even if there was any delay in filing the writ petition by the appellants herein. (Quoted) 33. On the point being taken by the learned Counsel for the Respondents that there will be huge financial burden on the State, this Court is not at all inclined to accept such a submission as it would lead to denying lawful benefits to persons who are entitled to them merely because the State says that it would cause a huge burden on them without taking into consideration that it involves the payment to only these Petitioners who are 22 in number. In this Context, Annexure-P/2 at page 58 shows that the Council gave benefits to persons mentioned between Sl. Nos. 7 to 45 who were the first group to get this benefit and then to persons mentioned between Sl. Nos 1 to 27 of Annexure-P/1 at page 54 (Second Group). They are the persons who were involved the earlier Writ Petition, as has been stated by the learned Counsel for the Petitioners and who got the benefit of the Judgment of the Division Bench. They can be referred to as the third group. Therefore, the only other group which remains, are the Petitioners who are 22 in number. If so many persons have got the relief and only 22 Petitioners are left, why should they be deprived before a Court of equity merely on the ground of delay
34. Under the aforementioned circumstances, this Court is not inclined to deny the benefit which was conferred to other persons merely on the ground of delay as, this Court, is of the view that there is no delay because this is a case relating to a prayer for fixation of pay and if the Petitioners are less paid every month, then every month, there is a fresh cause of action. Moreover, the impugned Order dated 15.1.2008 appears to be an Order passed in extreme anger by which the Secretary of the Council seems to have refused to interfere and pass orders in favour of the Petitioners merely because the others had approached the Court and were conferred benefits. It appears that, without applying his mind, the Secretary mechanically and apparently out of frustration threw up his hands and advised the Petitioners to go to Court ! Such a conduct is not expected from such a senior Officer of the State. It is therefore thoroughly deprecated and such Officers are warned to be more careful in future.
35. Under such circumstances, this Court is inclined to allow the Writ Petition. The Writ Petition is accordingly allowed. The Order passed by the Secretary, directing/ informing the Petitioner to approach a Court of law is accordingly answered by holding that the Petitioners must be given the same benefits as were given to the Appellants in FMA 1935 of 2006 and which was a subject matter of the Judgment of the Division Bench referred to above and which became final and stood confirmed upon dismissal of the SLPs referred to above.
There shall however, be no Order as to costs. As a consequence of this Judgment, the Respondents must comply with this judgment within a period of 4(four) months from the date of receipt of a copy of this Order.
Upon appropriate Application(s) being made, urgent Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.