[CASE NUMBER] IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2019 CORAM: THE HONOURABLE MR.JUSTICE [ENTITY] and THE HONOURABLE MR.JUSTICE [ENTITY] [CASE NUMBER] [ENTITY]] [ENTITY] [ENTITY] (Appellants 2 & 3 brought on record as legal heirs of the deceased/ sole appellant vide order of this Court dated 09.07.2019, made in [CASE NUMBER] in [CASE NUMBER]) Appellants Vs 1.The [ENTITY] Represented by Secretary to Government, Education Department, Fort St.George, Chennai 600 009. 2.Director of Elementary Education, College Road, Chennai 600 006. 3.The District Educational Officer, Erode. 4.The Chief Education Officer, Erode. 5.The Head Master, Government Higher Secondary School, Ingur 638 058. Respondents Writ Appeal filed under Clause 15 of Letters Patent, against the order of this Court dated 06.12.2017 in [CASE NUMBER]. http: www.judis.nic.in 1/13 [CASE NUMBER] For Appellants : Mr.[ENTITY] For R1 to R4 : Mr.[ENTITY] Government Advocate [ENTITY]
(Judgment of the Court was made by [ENTITY],J.) Appellant who had retired on 31.05.1994 has sent a representation dated 31 July 2017 to the respondents claiming selection and special grade of revised scale of pay from 01.06.1998 computing the period of service rendered as Selection Grade Teacher as well as Primary School Head Master prior to 01.06.1988.
2.Contending interalia that the said representation remained unanswered, he filed [CASE NUMBER] dated 06.12.2017 for a mandamus directing the respondents to treat the petitioner as Elementary School Headmaster and consequently to award higher pay in the post of Elementary School Head Master with effect from 01.06.1998 and Selection grade Head master from 11.06.1998 taking into account his earlier service and earlier services in the post as Selection grade teachers as well as primary school head master. http: www.judis.nic.in
3. As there was huge and unexplained delay of 21 years in approaching the writ court for a mandamus, and therefore, was not inclined to entertain the writ petition, vide its order dated 06.12.2017 dismissed the writ petition on the ground of laches i.e. the writ petition was filed after 21 years.
4. Aggrieved by the said order, instant writ appeal is filed on the following grounds:-
1. The Order of the writ court requires reconsideration.
2. Writ court is not right in dismissing the Writ Petition on the ground of laches.
3. The reasoning of the writ court that though the appellant retired from services on 31.05.1994, he has approached this Court after 21 years unexplained delay, requires reconsideration.
4. Writ court ought to have seen that there is no abnormal delay on the part of the appellant in moving this Hon'ble Court.
5. In this connection, the writ court has failed to note the following vital aspects and their cumulative effect:
a)Writ petitioner/appellant was employed as headmaster of Panchayat Union Higher Elementary School, Chennaiangiri Valasu from 16.07.1963 to 15.07.1965.
b)Thereafter, the appellant was transferred to Panchayat Union Higher Elementary School, Ingur on 16.07.1965 as Assistant as the post of Headmaster was not vacant.
c)The middle school sessions of the said Panchayat Union Higher Elementary School came to be bifurcated and the Government High School, Ingur was constituted and the http: www.judis.nic.in petitioner was posted as Assistant in the said school.
d)The Government High School, Ingur was later upgraded as the 5th respondent Government Higher Secondary School.
e)The petitioner was fully qualified to hold the post of Headmaster of Primary School and in fact, served as such Headmaster for two years.
f)The petitioner was thereafter not posted as Headmaster for want of vacancy and due to facts beyond his control.
6. The Appellant who had by then retired came to know of G.O.Ms.No.234 Education dated 10.09.2009 only in October, 2011 through the Teachers in Panchayat Union School, Ingur and the Appellant learnt that the benefits have been extended to retired Teachers.
5. Mr.[ENTITY], learned counsel for the appellant made submissions and contended that the writ court ought not to have dismissed the writ petition on the ground of laches. By inviting the attention of this court to a decision of the Honourable Supreme Court in Union of India and others Vs. [ENTITY] reported in 2017 SCC online SC 1809, learned Counsel further submitted that in the matter of payment of pension and pay, the claim is based on a continuing wrong and therefore, right of an applicant to approach the Court for appropriate remedy, cannot be shut down on the grounds of delay or laches. On the above grounds, learned counsel for the appellant prayed to reverse the order dated 06.12.2017 made in [CASE NUMBER] http: www.judis.nic.in
6. Mr. [ENTITY], learned Government Advocate appearing on behalf of the State, made his submissions to sustain the order impugned before us.
7. Heard the learned counsel for the parties and perused the materials available on record.
6. In [PRECEDENT], prayer of the respondent for disability pension was not considered. Hence, he approached the High Court. Learned Single Judge, allowed the writ petition and directed the respondents therein to grant disability pension at the rates permissible and insofar as arrears is concerned, the relief was restricted to 36 months prior to the filing of the writ petition. Union of India did not contest the said decision and granted disability pension to the respondent and also released arrears of disability pension for 38 months.
9. Not satisfied with the same, he moved a Letters Patent Appeal, which is allowed by the Honourable Division Bench, which upheld the entitlement of the disability pension, till the date which fell due and observed that it cannot be restricted to three years and two months prior to the filing of the writ petition.
10. Being aggrieved, the Union of India, filed an appeal. The Honourable Supreme Court, after adverting to the submissions of the parties, and following its earlier decisions, vide order dated 13.08.2008, http: www.judis.nic.in at paragraph Nos.4 to 6, it has held as thus:-
4.The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in [PRECEDENT], explained the concept of continuing wrong (in the context of [SECTION] of [ACT] corresponding to [SECTION] of [ACT]) :
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
In [PRECEDENT], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised http: www.judis.nic.in after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held :
"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 http: www.judis.nic.in of proper pay fixation, the application cannot be treated as time barred "
In [PRECEDENT], this Court held:
"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."
5. 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 http: www.judis.nic.in 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.
6. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It http: www.judis.nic.in ought not to have granted interest on arrears in such circumstances.
11. A cursory reading of paragraph 5 of the judgment in [ENTITY]'s case, makes it clear that 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 settle 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 the 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.
12. In Union of India and others v. [ENTITY], reported in 2017 SCC Online 1809, the respondent therein was boarded out on medical grounds in 1969 from Army. He filed a writ petition in 1997 for grant of disability pension. Learned Single Judge allowed the writ petition, which was confirmed on appeal. Testing the correctness of the same, Union of India filed an appeal. After hearing the arguments of the learned counsel for both parties, Honourable Supreme Court, framed the following questions:-
The limited question which may fall for our consideration in this appeal ultimately would be as to whether the http: www.judis.nic.in respondent can be held entitled to the arrears of the disability pension and that too confined to the grounds of laches.
On the aforesaid limitation question, this appeal is admitted.
13. At paragraph 8 of the reported judgment, the Honourable Supreme Court further observed that the only question in the Letters Patent Appeal was whether the writ petitioner was entitled for arrears of the disability pension due to laches; the claim of disability pension, thus, on the ground of laches, was not under consideration; the limited issue was grant of arrears of disability pension from the date of boarding out till the date of the learned Single Judge.
14. Thus, from the above, it could be deduced that the Honourable Supreme Court, did not reverse the orders passed by the High Court on the grounds inter alia that the respondent therein was dis-entitled from claiming disability pension, though belatedly made after 28 years.
15. Following the same, we set aside the order of the writ court in [CASE NUMBER] dated 06.12.2017 and remand the matter to the writ court, for reconsideration on merits, as to the entitlement for the prayer sought for.
16. In the result, Writ Appeal is allowed. Order of the Writ Court http: www.judis.nic.in dated 06.12.2017 made in [CASE NUMBER] is set aside. [CASE NUMBER] is remitted back to the writ court for fresh disposal. Registry is directed to place the matter before the writ court for hearing on merits. No costs in writ appeal.
([ENTITY]) (D.K.K.J.) 26.09.2019 Index:Yes/No Internet:Yes/No nvsri/asr 1.The [ENTITY] the Secretary to Government, Education Department, Fort St.George, Chennai 600 009. 2.Director of Elementary Education, College Road, Chennai 600 006. 3.The District Educational Officer, Erode. 4.The Chief Education Officer, Erode. 5.The Head Master, Government Higher Secondary School, Ingur 638 058. http: www.judis.nic.in [ENTITY], J. AND [ENTITY], J. nvsri/asr 26.09.2019 http: www.judis.nic.in