OP(CAT).No.330 OF 2012(Z)

_**OP(CAT).330/12**_ 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 04TH DAY OF OCTOBER 2019 / 12TH ASWINA, 1941** **OP (CAT).No.330 OF 2012(Z)** ## **PETITIONER/S:** - **1 THE ADMINISTRATOR, UT OF LAKSHADWEEP UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.** - **2 THE DIRECTOR OF EDUCATION UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.** - **3 THE HEADMASTER JB SCHOOL CENTRE, UTL AGATTI. BY ADVS. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA** ## **RESPONDENT/S:** |**1**|**A.C. NADER KOYA**| |---|---| ||**S/O.K.C.SIKHANDER, HEAD MASTER (RETD.), JUNIOR**| ||**BASIC SCHOOL CENTRE, AGATTI AND RESIDING AT ATHANA**| ||**ILLAM, CHETTA HOUSE, AGATTI-682553.**| |**2**|**UNION OF INDIA**| ||**REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,**| ||**MINISTRY OF HOME AFFAIRS, DEPARTMENT OF PERSONNEL**| ||**AND ADMINISTRATIVE REFORMS, NEW DELHI-11001.**| **R1 BY ADV. SRI.N.UNNIKRISHNAN R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CAT).330/12**_ 2 **“C.R”** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------O.P.(CAT) No.330 of 2012 ----------------------------------------------Dated this the 4[th] day of October, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The official respondents in O.A.No.695 of 2008 of the Central Administrative Tribunal, Ernakulam Bench have filed this original petition aggrieved by Exhibit P4 order by which the Tribunal allowed the original application and declared the applicant/1[st] respondent herein to be entitled for selection grade of pay of Rs.530-630 with effect from 23.1.1979 and directed the respondents/petitioners herein to grant consequential benefits to the applicant with effect from 23.1.1979. The Tribunal limited the arrears, if any, payable on the basis of the order to a period of three years prior to the date of filing of the original application. The short facts which led to the filing of the original petition are as under; the parties and exhibits being described as in the original application. 2. The applicant had joined Government service under the Lakshadweep Administration as Primary School Teacher on 23.1.1969 and retired as Headmaster on 31.2.2006, on attaining the age of superannuation. The applicant was appointed as Primary School _**OP(CAT).330/12**_ 3 Teacher in the pay scale of Rs.118-270, which was later enhanced and fixed as Rs.330-560 based on the recommendation of the Third Central Pay Commission. According to the applicant, his next higher scale was the selection grade pay scale of Rs.530-630 introduced as per O.M.No.7(61)EIII(A)77 dated 10.1.1977. By Annexure AI O.M dated 13.2.1980, the earlier O.M was clarified in the following manner: _“2. In the Ministry of Finance OM dated 24.10.78 it has been clarified that in respect of selection grades to group C and D posts, any officer who has crossed 3/4[th] span of the revised scale of pay of the ordinary grade will be eligible for the grant of selection grade, even if he does not fulfill the length of service condition ie 14 years. Thus any officer whose pay in the ordinary grade, has under any circumstances, crossed the stage in the time scale of the ordinary grade, appropriate to 3/4[th] span will become eligible._ _3. This may, in certain circumstances, render officers junior in the seniority list of the ordinary grade, eligible for grant of selection grade prior to some seniors. It is clarified that the eligibility for grant of selection grade in Group C&D will be determined with reference to the criteria mentioned above, irrespective of the position in the seniority list. Such eligibility will be determined initially on the date on which the selection grade is deemed to take effect, for example, on 1.8.76 and the every anniversary thereof or on the date of DPC hereafter, even though the consideration of the DPC may be on a subsequent date or dates. In preparing the list of eligible officers the crucial date will be such date of_ _**OP(CAT).330/12**_ 4 _initial effect, or such anniversary of the date of DPC, as the case may be, and any officer not eligible on the crucial date will not be included in the list of eligible officers for the relevant DPC even in cases where some of the officers left out are actually senior in the seniority list. The DPC will prepare the panel on the basis of rejection of unfit and appointments to the selection grade made accordingly.”_ The applicant having crossed three-fourth span of revised scale of pay in the original grade on 23.1.1979, he staked claim for revision of his pay scale on the basis of Annexure AI. A request in this regard was made by the applicant for the first time on 11.11.1991 as per Annexure A4. His request not being considered, the applicant submitted Annexures A5, A6 and A7 reminders on 29.9.1992, 27.7.1992 and 18.11.1992, followed by Annexures A8 and A9 representations submitted on 12.9.1993 and 2.10.1993 respectively. Ten years later, i.e. on 15.4.2003, the applicant submitted Annexure A10 representation and followed it up with Annexures A11 to A14 reminders. The representations and reminders having failed to evoke any response, the original application was filed on 27.11.2008 seeking the following reliefs: _“i) call for the records leading to the denial of Selection Grade of pay of Rs.530-630 by the respondents._ _ii) to declare that the applicant is entitled to Selection Grade of pay of Rs.530-630 w.e.f. 23/1/1979._ _**OP(CAT).330/12**_ 5 _iii) issue appropriate order or direction to the respondents to release necessary orders granting selection grade pay of Rs.530-630 w.e.f. 23/1/1979 with further consequential benefits to the applicant.”_ 3. The official respondents raised an objection on the ground that the original application is hopelessly time barred and also controverted the factual contentions through their counter affidavit. 4. Along with the original application, the applicant had filed M.A.No.902 of 2008 seeking condonation of delay of 843 days in filing the original application. The aspect of delay has been dealt with by the Tribunal at paragraph 8 of the impugned order in the following manner: “ _8. MA.No.902 of 2008 in the instant OA for condoning the delay of 843 days in filing the same is allowed as the delay is not intentional or wilful on the part of the applicant and also because the applicant is put to recurring loss.”_ 5. After condoning the delay, the Tribunal considered the matter on merits and allowed the original application under Exhibit P4 order. A review application filed by the respondents reiterating its contentions based on delay was also dismissed. 6. Before proceeding to consider the original petition on merits, we deem it appropriate to consider the question as to whether the delay in filing the original application was only of 843 days as stated in M.A.No.902 of 2008 and if not, whether the Tribunal was justified in condoning the delay. In order to consider this question, the relevant provisions of the Administrative Tribunals Act, 1985 (for short, 'the _**OP(CAT).330/12**_ 6 Act') are to be looked into. As per Section 20(1) of the Act, the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. As per Sub-section (2) of Section 20 of the Act, a person shall be deemed to have availed of all the remedies available to him; (a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. Therefore, Section 20(2)(b) gives right to a cause of action for filing an original application on expiry of six months from the date on which a representation was submitted by the applicant and remained unanswered. As per Section 20(1)(i)(b), a Tribunal shall not admit an application 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 period of six months had expired thereafter without such final order having been made, unless the application is made within one year from the date of expiry of the said period of six months. _**OP(CAT).330/12**_ 7 Hence, an application before the Tribunal has to be submitted within 18 months from the date of submission of a representation which remained unconsidered. Of course, sub-section (3) of Section 20 empowers the Tribunal to entertain an application filed after the prescribed period if the applicant is able to satisfy the Tribunal that he had sufficient cause for not making the application within time. 7. As far as the instant case is concerned, the applicant had sought condonation of delay of 823 days based on Annexure A12 representation dated 16.10.2006, whereas his first representation was on 11.11.1991. Going by Section 20(2)(b) of the Act, the other remedies available to the applicant stood exhausted on expiry of six months from the date of submission of his first representation, the authority concerned having failed to pass final order. Therefore, in terms of Section 21(1)(b), the applicant ought to have filed the original application within one year from the date of expiry of the said period of six months. Having failed to approach the Tribunal within that time limit, the applicant cannot be permitted to revive his stale claim based on a representation filed after 15 years. The representation mentioned in Section 21(1)(b), is the first representation. Representations filed subsequently will not save the time prescribed under Section 21(1)(b), since the other remedies of the applicant stood exhausted on expiry of the six months period prescribed under Section 20(2)(b). In that view of the matter, the Tribunal committed an illegality in considering the _**OP(CAT).330/12**_ 8 original application on merits by condoning the delay of 843 days, which was computed based on a representation submitted after 15 years of submission of the first representation. 8. The scope and ambit of Section 21 was considered by another Division Bench of this Court in _**C.Unnikrishnan v. Union of India & Others**_ [2017 (3) KLJ 174] and answered in the following words: _“28. It is well settled that, the law of limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under sub-section (3) of Section 21 of the Act, the Tribunal can condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the Tribunal-at-will disregarding the time limit fixed in clause (a) of sub-section (2) of Section 20 of the Act. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown thereby explaining the sequence of events and the circumstances that led to the delay. In the instant case, same is absent. The reason stated in the affidavit accompanying to M.A.No.910/2013 is not at all sufficient cause for condonation of the inordinate delay of 2216 days in filing the O.A.”_ 9. The learned counsel for the applicant contended that the cause of action for filing the original application being denial of selection grade pay, which amounted to a continuing wrong, the remedy will not be defeated due to delay since the continuing wrong _**OP(CAT).330/12**_ 9 created a continuing source of injury. In support of his contention, reliance was placed on the decisions of the Honourable Supreme Court in _**M.R.Gupta v. Union of India and others**_ [(1995) 5 SCC 628] and _**Union of India and others v. Tarsem Singh**_ [(2008)8 SCC 648]. 10. In _**M.R.Gupta's case (supra)**_ the appellant's grievance was regarding wrong fixation of pay, which according to him gave rise to a recurring cause of action each time he was paid salary based on wrong computation. The Apex Court found that non payment of eligible salary is a continuing wrong and proceeded to hold as follows: _“...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. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Others vs. Mattapalli Raju and Others, AIR 1950 Federal Court 1)._ 11. A careful analysis of the above dictum reveals that the alleged continuing wrong, which is non payment of eligible salary, will subsist during the entire tenure of service and can be exercised at the time of each payment of salary. The Apex Court proceeded to hold that the right of a Government servant to be paid correct salary throughout _**OP(CAT).330/12**_ 10 his tenure, based on computation in accordance with the rules, is akin to the right of redemption which is an incident of subsisting mortgage and will subsist so long as the mortgage itself subsists, unless the equity of redemption is extinguished. Hence, the continuing wrong would subsist as long as the employee is in service and not beyond that. Adopting the corollary set out by the Apex court in _**M.R.Gupta's case (supra),**_ the mortgage will not subsist and the equity of redemption gets extinguished on the employee leaving the service. In the instant case, the applicant did not exercise his right of redemption, i.e., his right to seek legal remedy based on his demand for payment of correct salary, while he was in service. As the continuing wrong does not subsist after retirement, the applicant cannot wriggle out of the inordinate delay in filing the original application, by relying on the judgment in _**G.P.Gupta's case (supra)**_ and followed in _**Tarsem Singh's case (supra).**_ 12 _._ The contention that the repeated representations submitted by the applicants having not been replied, the cause of action for filing the original application arose on the last representation, does not require much deliberation in view of the settled legal position that repeated representations would not revive a stale claim. This question was considered by the Honourable Supreme Court in _**Jacob C. v. Director of Geology and Mining & another**_ [(2008) 10 SCC 115], wherein at paragraph 10 it is observed as follows: _**OP(CAT).330/12**_ 11 _“10_ _**.** Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.”_ In view of the legal position enunciated above, the applicant was not entitled for any relief and hence the impugned order is liable to be interfered with. In the result, the original petition is allowed by setting aside the orders of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.695 of 2008 and R.A.No.70 of 2011. **Sd/-** ## **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ _**OP(CAT).330/12**_ 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE OA NO.695/2008. EXHIBIT P2 A TRUE COPY OF THE OM DATED 10/01/1977. EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS.** **EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL IN OA NO.695/2008 DATED 16/02/2011.** **EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN RA NO.70/2011 DATED 21/12/2011.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF RELEVANT PORTION OF 4TH C.P.C. RECOMMENDATION PUBLISHED IN SWAMY'S COMPILATION.** **EXHIBIT R1 B A TRUE COPY OF OM NO. 7(21) E-III(A)/74 DATED 10/01/1977. EXHIBIT R1 C A TRUE COPY OF ORDER DATED 03/01/2001 IN OA NO.631/1998 PUBLISHED IN SWAMY'S NEWS.**