W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 1 of 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 30.11.2009 % Judgment Delivered on: 11.12.2009 + (1) W.P(C)5777/2007 SHRI KRISHAN LAL & OTHERS ..... Petitioners Through: Mr. Pramod Kumar Sharma and Mr. Deepak Raja, Advocates. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. A. K. Bhardwaj, Advocate. AND (2) W.P(C) 5789/2007 SHRI M.R.SATYARTHY ..... Petitioner Through: Mr. Pramod Kumar Sharma and Mr. Deepak Raja, Advocates. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. A. K. Bhardwaj, Advocate. AND (3) W.P(C) 5812/2007 SHRI T.R.SACHDEV & ORS ..... Petitioners Through: Mr. Pramod Kumar Sharma and Mr. Deepak Raja, Advocates. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. A. K. Bhardwaj, Advocate. CORAM: HON'BLE MR. JUSTICE ANIL KUMAR HON'BLE MR. JUSTICE VIPIN SANGHI W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 2 of 30 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? No 3. Whether the judgment should be reported in the Digest? No VIPIN SANGHI, J. 1. This common order shall dispose off the aforesaid three writ petitions preferred against the common order passed by the Central Administrative Tribunal, Principal Bench, New Delhi, inter alia, in O.A. No.2230/2006 filed by Sh. Krishan Lal and six others (from which W.P.(C) No.5777/2007 arises), O.A. No.1778/2006 filed by Sh. M.R. Satyarthy (from which W.P.(C) No.5789/2007 arises), and O.A. No.2231/2006 filed by Sh. T.R. Sahdev and 26 others (from which W.P.(C) No.5812/2007 arises). The Original Applications of the petitioners have been dismissed by the Tribunal on the ground of limitation and also by distinguishing the various decisions relied on by the petitioners to claim the reliefs as claimed by them. Since the issues arising in these petitions are the same, we are dealing with all these petitions at the same time. For the sake of convenience, we are taking some facts from W.P.(C) No.5777/2007 to understand the controversy. The facts and issues arising in the other cases are also similar. W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 3 of 30 2. The petitioners Sh. Kishan Lal and six others filed O.A. No.2230/2006 to seek directions to re-fix their pay under the new Electronic Data Processing (EDP) pay scales of Data Processing Assistant Grade-A (Rs.1600-2660), Data Processing Assistant Grade- B (Rs.2000 - 3200) and Programmer (Rs.2375-3500) w.e.f. 01.01.1986, or from the date of their appointment on the post of Senior Computer, Statistical Assistant and Assistant Programmer, whichever is later, with all consequential, monetary and pensionary benefits. To claim the said relief they relied on the decision of this Court in Civil Writ Petition No.1212 of 1999 dated 10.01.2002 titled Union of India & Ors. v. B.N. Sharma & Ors. and the judgments of the Tribunal dated 18.12.2003 in O.A. No.553/2003 titled R.K. Sharma & Ors. v. Union of India and in O.A. No.2587/2005 titled Shama Kaul & Ors. v. Union of India. A direction was also sought to re-fix the applicants‟ pensionary benefits with all consequential monetary benefits. 3. When the Fourth Pay Commission Report was accepted by the Government and implemented, in terms of para 11.45 of the Fourth Pay Commission Report, the Department of Electronics set up the Seshagiri Committee to examine and suggest the re-organization of the existing EDP posts and to prescribe uniform pay scales and designations in all the departments of the Government of India. Taking the Seshagiri Committee Report into account, Government of India, Ministry of Finance, Department of Expenditure issued an W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 4 of 30 office memorandum (OM) dated 11.09.1989, thereby introducing the pay structure for the EDP posts. The pay structure introduced by the government was as follows: “S. No. Designation of Post Pay Scale Data Entry Operators 1. Data Entry Operator Grade „A‟ Rs.1150- 1500 This will be entry Grade for Higher Secondary with knowledge of Data Entry work. 2. Data Entry Operator Grade „B‟ Rs.1350- 2200 This will be entry grade for graduation with knowledge of Data Entry work or promotional Grade for Data Entry Operator Grade „A‟. 3. Data Entry Operator Grade „C‟ Rs.1400- 2300 Promotional Grade. 4. Data Entry Operator Grade „D‟ Rs.1600- 2660 Promotional Grade. 5. Data Entry Operator Grade „E‟ Rs.2000- 3500 Promotional Grade. Data processing/ Programming Staff 1. Data Processing Assistant Grade „A‟ Rs.1600- 2660 Entry grade for graduates with Diploma/Certificate in Computer application. 2. Data Processing Assistant Grade „B‟ Rs.2000- 3200 Promotional Grade. 3. Programmer Rs.2375- 3500 Direct Entry for holders of Degree I n Engi (sic) or post- graduation in Science/Maths etc. or post-graduation in Computer Application. OR W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 5 of 30 By promotion from Data Processing Assistant Grade „B‟. 4. Senior Programmer Rs.3000- 4500 Promotional Grade.” 4. This OM further provided that all ministries/departments having EDP posts under their administrative control should review the designation, pay scale and recruitment qualification of their posts and revise the same in consultation with their financial advisories to the extent necessary as per pay structure indicated in the OM. It further provided that the revised pay scales would be operative from the date of issuance of the notification by concerned ministry/department. This OM further provided that the review suggested would be made only with reference to existing EDP posts and it will not be necessary to create all the grades in all the ministries/departments as it would depend on requirement of the user departments. If the ministries/departments proposed to create new grades which were not existing at the time of issuance of the OM, the same was to be done with the approval of the financial advisories and subject to procedures laid down for the purpose. 5. As noticed hereinabove, the OM dated 11.09.1989 provided that the revised pay scales would be operative from the date of issuance of the notifications by the concerned ministry/department. However, this stipulation was modified by another ministerial communication dated 08.01.1991 of the Ministry W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 6 of 30 of Defence, whereby the revision of the pay scales of EDP posts was also prescribed. It was provided by this communication that the revised pay scales would take effect from 11.09.1989 and the pay of the existing incumbents would be fixed under FR 23 and FR 22(I)(a)(ii). 6. Various Original Applications were filed before the Tribunal by the EDP Staff working in different ministries/departments to challenge the decision to grant the revised pay scales to those holding EDP posts from 11.09.1989, and not from 01.01.1986 when the Fourth Pay Commission Report was implemented in respect of all government employees. The Tribunal upheld the claim of the EDP employees and granted the revised pay scales from 01.01.1986. Writ petitions preferred in this Court by the Government were also dismissed. The decisions relied upon by the petitioners as noticed in paragraph 2 above are some of them. 7. The Original Applications in question were filed by the petitioners only in the year 2006 to claim re-fixation of their pay from 01.01.1986 and, consequently, their pension on the basis of the earlier decisions of the Tribunal and of this Court. The Tribunal has, as aforesaid, inter alia, held that the original applications were barred by limitation. The Tribunal also held that the settled service position could not be altered and disturbed after the passage of nearly twenty years at the instance of the petitioners, as it would W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 7 of 30 create chaos and confusion. The Tribunal rejected the reliance placed by the petitioners on a host of earlier decisions wherein the Courts/Tribunal had granted re-fixation of pay from 01.01.1986 as opposed to 11.09.1989 by concluding that the said decisions/orders did not lay down any ratio nor constitute binding precedents in law. Most of them were simply orders containing directions founded upon earlier orders of the Court/Tribunal. Consequently, the aforesaid original applications were dismissed by the Tribunal. 8. The submission of learned counsel for the petitioners is that the original applications filed by the petitioners were not barred by limitation since the petitioners had been representing to the respondent to assert their claim. Moreover, from time to time, various directions/orders had been issued by the Tribunal and by this Court granting the re-fixation of pay w.e.f. 01.01.1986 which was the date of implementation of Fourth Pay Commission Report for all government employees. He submits that only when the petitioners learnt of the orders passed by the Tribunal and by this Court in other similar cases, they approached the Tribunal by filing the aforesaid original applications. He further submits that the Tribunal has completely disregarded the earlier precedents and decisions while denying relief to the petitioners. The petitioners are entitled to the same treatment as their colleagues who had earlier approached the Tribunal and had been granted relief. W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 8 of 30 9. Learned counsel for the respondent, on the other hand, supports the decision of the Tribunal that the original applications were highly belated and barred by limitation. He also submits that the Tribunal had rightly distinguished all the decisions cited by the petitioners, inasmuch as, in those decisions there was no ratio or principle which could be discerned and applied as a binding precedent. 10. Mr. Bhardwaj, learned counsel for the respondents, submits that the claim of the petitioners, in any event, was not justified, inasmuch as, in the case of these petitioners it was not a case of mere re-fixation of pay, but a case of introduction/creation of new pay structure and grades by creating fresh designations on the basis of experience and educational qualifications. Mr. Bhardwaj does not dispute that in case of a simplicitor re-fixation on a corresponding higher pay scales, the writ petitioners would be entitled to notional fixation of the revised pay w.e.f. 01.01.1986, and consequential re- fixation of their present pay/pension. He further submits that in terms of the Seshagiri Committee Report, new posts/grades were created with higher qualifications and a conscious decision was taken from time to time to place the eligible employees in the relevant grades/posts. He submits that in such like cases the re- fixation of pay, even on a notional basis, could not be preponed to 01.01.1986 mechanically and the revised pay-scales/grades could be granted only from the dates on which the government took the W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 9 of 30 conscious decision. In support of this submission, Mr. Bhardwaj relied on the Supreme Court decision in Union of India and Others vs. Secretary, Madras, Civil Audit and Accounts Association and Anr. etc. 1992 (1) SLR 667. 11. We have heard learned counsel for the parties at length. 12. While dealing with the issue of limitation, the Tribunal relied on Ramesh Chand Sharma etc. v. Udham Singh Kamal and others JT 1999 (8) SC 289 wherein it had been held that in the absence of any application under sub-Section (3) of Section 21 praying for condonation of delay, the Tribunal had no jurisdiction to admit and dispose off the original application on merits. In none of the three Original Applications, it appears that any application was filed by the petitioners/applicants to seek condonation of delay in approaching the Tribunal. The Tribunal also relied on E. Parmasivan v. Union of India (2003) 12 SCC 270, wherein the claim of retired officers of MES regarding fixation of pay had been rejected on the ground of limitation, stating that they should have raised objections regarding the anomaly when they were in service. The Tribunal relied on A.P. Steel Rolling Mill Ltd. v. State of Kerala & Ors. (2007) 2 SCC 725, wherein it had been held that the benefit of a judgment of a Court is not extended to all cases automatically. The Court would consider the fact whether the writ petitioner had chosen to sit over the matter and then wake up after W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 10 of 30 the decision of the Court in some other matter. It was further held that if the applicant approached the Court after a long delay, the same may disentitle him to obtain discretionary relief. In S.S. Rathore v. State of M.P. 1989 (7) SLR 449, it had been held that repeated unsuccessful representations, not provided by law, would not extend the period of limitation. In these cases the representations were also made highly belatedly in the years 2005 and 2006 as noted by the Tribunal in para 29 of the impugned orders. In Union of India & Ors. v. O.P. Saxena JT 1997 (6) SC 586, the Supreme Court held that the Original Application filed by the applications in July, 1991 in respect of the claim for stepping up of the applicants‟ salary, who had retired on 31.03.1988 was highly belated. 13. Merely because others had approached the Tribunal and this Court to seek re-fixation of their pay w.e.f. 01.01.1986 earlier, and had succeeded in their endeavour, would not entitle the petitioners to seek the same relief at this highly belated stage. We may refer the Supreme Court in S.S. Balu & Anr. v. State of Kerala & Ors. VIII-2009(2) All India Services Law Journal 480, wherein the Supreme Court has held as follows: “18. It is also well settled principle of law that “delay defeats equity”. Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 11 of 30 allowed and State of Kerala preferred an appeal there against, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.” [Also see Shri Gian Singh Mann v. The High Court of Punjab and Haryana and another 1980 (3) SLR 18]. 14. Though we are in agreement with the finding of the Tribunal that the writ petitioners could not have prayed for arrears of pay and allowances and even pension (in respect of those of the petitioners, who have since retired) by filing the Original Applications highly belatedly, in our view the Tribunal has failed to appreciate that the cause of action in these cases was a continuing cause of action, inasmuch as, the right to receive the pay/pension accrues each month. The Tribunal, in our view, ought to have applied the ratio of the Supreme Court decision in M.R. Gupta v. Union of India & Ors. AIR 1996 SC 669 wherein it held as follows: “5. ………………. 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 W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 12 of 30 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 it the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. 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. 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 W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 13 of 30 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 Ors. v. Mattapalli Raju, AIR 1950 Federal Court 1).” 15. The claim for re-fixation of pay from 01.01.1986, even if granted to the petitioners, would not entitle them to claim arrears of pay and pension. The re-fixation would be notional, and the right to receive arrears could, at best, relate to the period of one year before the date of filing of the Original Applications and not before that date. Since the revision of the petitioners‟ pay, if granted, would impact their respective salaries/pensions presently being drawn by them, in our view, on a combined reading of the aforesaid decisions relied upon by the respondents with M.R. Gupta (supra), it can be said that the Original Applications filed by the individual applicants were barred by limitation in so far as the claim for arrears of pay/pension beyond the period of one year prior to the date of filing of the Original Applications were concerned. 16. We now proceed to consider the submission of the parties with regard to the claim of the petitioners that they would be entitled to re-fixation of pay, re-designation and upgradation from 01.01.1986 in all situations, irrespective of when the posts were re- designated and/or upgraded. We have gone through the aforesaid decision in The Secretary, Madras Civil Audit & Accounts W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 14 of 30 Association and Anr. Etc. (supra). In our view the ratio of this decision squarely applies to the petitioners‟ case. Since this is a detailed decision of the Supreme Court, in our view, it would be a futile exercise to undertake the analysis of the other decisions relied upon by the petitioners. 17. We now proceed to deal with the same. The Comptroller & Auditor General of India (C.A.G.) recommended some time in 1983 to the Government of India to bifurcate the Indian Audit & Accounts Department (I.A. & A.D.) into two separate and distinct wings, one to exclusively deal with 'audit' and the other to deal with 'accounts' with their own separate personnel. The Government of India after considering all aspects approved the proposal in December, 1983. Thereafter, C.A.G. formulated a scheme on 19.12.83 for bifurcation of the I.A. & A.D. into two separate and distinct wings from 1.3.84. This scheme also provided for all incidental and auxiliary matters relating to the two wings. Before the restructuring of the cadres, the staff working in the I.A. & A.D. were asked to exercise their option to serve in either of the two wings. Some employees exercised the option. 18. A grievance arose that the various equivalent cadres in Audit and Accounts Wings were not paid the same scales of pay, and the persons allotted to the Audit Wing were drawing more pay than the persons allotted to the Accounts Wing. W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 15 of 30 19. The Fourth Pay Commission which was looking into various aspects of the matter recommended in its report that there should be parity of scales of pay between the two wings. The Government took the necessary decision on the basis of the recommendations and the same were published in the Gazette on 13.9.86. The Government accepted the recommendations relating to the scales of pay and decided to give effect, from 1.1.86, to the recommendations of scales of pay for Group 'D' employees. Thereafter Ministry of Finance, Department of Expenditure issued Office Memo (OM) dated 12.6.87 regarding the posts to be placed in higher scales of pay and it was mentioned that these orders would take effect from 1.4.87. 20. The employees raised a grievance that the recommendations of the Fourth Pay Commission should be given effect from 01.01.1986. Several employees belonging to the Accounts Wing filed original applications before the Bangalore Bench, while others moved the Madras Bench of the CAT. Because of a difference of opinion in the two Benches, a full Bench of the Tribunal was constituted which took the view that the employees belonging to the Accounts Branch are entitled to the benefit of higher pay scales w.e.f. 01.01.1986. The Union of India approached the Supreme Court and the precise question considered by the Supreme Court was whether the benefit of O.M. dated 12.06.1987 issued by the Government of India, Ministry of Finance, Department of Expenditure should be extended to the members of the Accounts W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 16 of 30 Wing of the I.A. & A.D. w.e.f. 01.01.1986 as in the case of Audit Wing, or whether it should be with effect from 01.04.1987, as indicated in the said office memorandum. 21. The Supreme Court extracted Para 11.38 of the Fourth Pay Commission Report and concluded that there were two recommendations made by the Pay Commission namely : 1. That there should be broad parity in the pay scales of the staff in the I.A. & A.D. and other accounts organizations; 2. The scales of pay of Rs. 1400-2000 and 2000-3200 should be treated as functional grades requiring promotion as per normal procedure. The number of posts to be placed in the said scales was to be decided by the Government. 22. The Supreme Court noticed that so far as the first recommendation was concerned, there was no dispute about the same. However, in respect of the second recommendation the Supreme Court observed that to implement the said recommendation, the Government would have to take specific decisions to give effect to the same, from a suitable date keeping in view of all the relevant aspects. Accordingly, the Government had to examine and decide the number of posts to be placed in these scales of pay and to take a final decision, which was taken in the year 1987, whereafter promotions were to be made as per normal procedure. W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 17 of 30 23. The full Bench of the Tribunal had interpreted the recommendations of the Pay Commission to mean that both the wings would not only get the revised scales of pay but that they would also get the same from the same date. The Tribunal had held that the office memorandum dated 12.06.1987 was violative of Article 14 of the Constitution of India. 24. The Supreme Court, however, did not agree with this view of the Tribunal. In para 4, the Supreme Court held as follows: