{1} wp275910.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2759 OF 2010 Sampatrao s/o Malojirao Waghmare, age: 67 years, Occ: Service (Rtd.), R/o C/o Andh Vidyalaya, Sanjaynagar, Somnathpur Road, Udgir, Tq.Udgir, District Latur. Petitioner Versus 1 State of Maharashtra, the Secretary, Department of Animal Husbandry, Dairy and Fisheries, Mantralaya, Mumbai-32. 2 The Commissioner, Animal Husbandry Department, MS Pune 1. Respondents Mr.C.V.Dharurkar, advocate for the petitioner Mr. S.K.Tambe, A.G.P. for respondents. CORAM : B.R.GAVAI AND R.M.BORDE, JJ. DATE : 14 th December, 2010 ORAL JUDGMENT (Per R.M.Borde, J.): 1 Rule. Rule made returnable forthwith and heard {2} wp275910.odt finally by consent of learned Counsel for respective parties. 2 The petitioner, a retired employee of Animal Husbandry Department, is raising challenge to the order dated 01.02.2010, passed by the Maharashtra Administrative Tribunal, Aurangabad in Misc. Application No.285 of 2009, whereby the Tribunal has rejected the application tendered by the petitioner seeking condonation of delay occurred in presenting the Original Application. 3 The petitioner was appointed as Livestock Supervisor on 26.11.1965. During his service tenure, he was promoted as Assistant Livestock Development Officer since 20.12.1982. The petitioner has completed twelve years of service as Assistant Livestock Development Officer. It is also not disputed that the petitioner stood retired on attaining age of superannuation on 30.12.2000. 4 The General Administration Department of Government of Maharashtra issued a Resolution providing for grant of higher pay scale to group “C” and “D” employees. The precondition for being eligible to secure higher pay scale is completion of twelve years of regular service on the post where no higher post in the hierarchy is available for promotion. It is the contention of the petitioner that in view of the Government {3} wp275910.odt Resolution, referred to in the petition, he became entitled to receive higher pay scale since 08.06.1995. The proposal, in that regard, was tendered to the Commissioner, Animal Husbandry, Pune on 02.08.1997. However, the proposal, tendered by the petitioner, has not been considered and he was not extended the financial benefits. As such, after issuing legal notice to the Respondent- authorities, the petitioner has tendered Original Application to the Maharashtra Administrative Tribunal seeking appropriate orders. 5 According to the petitioner, by way of abundant precaution, he also tendered Misc. Application No.285/2009 seeking condonation of delay, if any, occurred in approaching the Tribunal. The Division Bench of the Maharashtra Administrative Tribunal, after hearing the petitioner as well as Counsel appearing for respondents, turned down the request made by the petitioner for condoning the delay and for registering the Original Application. It is observed in the order by the Tribunal that even assuming that the representation dated 02.08.1997 made to the Government gave cause of action on 02.02.1998, the petitioner ought to have approached the Tribunal within one year since then, however, he approached the Tribunal after nine years since his superannuation. The Tribunal further observed that in view of the provisions of Sections 20 and 21 of the Administrative Tribunals Act, 1985, the petitioner is required to approach the Tribunal within one year from the date of accrual of cause of action. The {4} wp275910.odt petitioner has also not explained the delay properly, which, according to the Tribunal, can be termed as a “yawning gap” and time lost in filing repeated representations to the Government is not a justifiable ground for approaching the Tribunal at belated stage. 6 We have perused the order passed by the Maharashtra Administrative Tribunal. Learned Counsel appearing for the petitioner contends that in the facts and circumstances of this case, it cannot be construed that the petitioner has approached the Tribunal belatedly. However, by way of abundant precaution, the petitioner has tendered an application requesting the Tribunal to condone the delay. According to the petitioner, the cause of action arose every month when the petitioner received his monthly salary and after his retirement, when he receives his monthly pension on the basis of wrong computation made prior to declaration of the the Government policy. The petitioner contends that the grievance made in respect of holding the petitioner eligible for grant of higher pay scale, in effect, for proper fixation, is a recurring cause and the Tribunal ought not to have turned down the application on the ground of unexplained delay. 5 Reliance is placed on the judgment in the matter of M.R.Gupta Vs. Union of India, reported in 1995 (5) SCC 628 = AIR 1996 SC 669. The appellant before the Apex Court, in the {5} wp275910.odt reported matter, was an employee of Government Polytechnic who joined in 1967. He joined services in Railways in the year 1978 and claimed fixation of his pay on his joining the Railway service on the basis of Rule 2018 (old) equivalent to Fundamental Rule 22-C. The representation tendered by the appellant, in the reported matter, was rejected in the year 1985 and the appellant, therefore, approached the Tribunal in the year 1989 praying for fixation of his initial pay with effect from 01.08.1978. The Tribunal, however, rejected the application on the ground that the appellant approached the Tribunal after lapse of eleven years since his initial fixation of 1978 and as such, the petition was hopelessly time barred. While accepting the case put up by the appellant, the Apex Court in paragraphs no.6 & 7, has observed thus: 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 the 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, {6} wp275910.odt unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao V. Mattapalli Raju). 7 Learned counsel for the respondents placed strong reliance on the decision of this Court in S.S.Rathore V. State of M.P.. That decision has no application in the present case. That was a case of termination of service and, therefore, a case of one time action, unlike the claim for payment of correct salary according to the rules throughout the service giving rise to a fresh cause of action each time the salary was incorrectly computed and paid. No further consideration of that decision is required to indicate its inapplicability in the present case.” Considering the ratio laid down by the Apex Court in the reported matter, the grievance in relation to the fixation of pay scale gives rise to recurring cause of action each time when the employee is paid salary. 6 It is the contention of respondents herein that the petitioner has retired on attaining age of superannuation in the year 2000 and he has approached the Tribunal in the year 2009 and as such, the claim raised by the petitioner is hopelessly barred by limitation. If the analogy drawn by the Apex Court in the reported matter is to be applied to the instant case, the petitioner shall have a recurring cause of action each time when he receives his monthly pension amount. It is to be noted that monthly {7} wp275910.odt pension of an employee is required to be fixed on the basis of last pay drawn. 7 The grievance of the petitioner is that during his service tenure, his claim in respect of higher pay scale entitling him to draw higher monthly wages was not considered. This inaction on the part of respondents has definitely adversely affected determination of pension amount payable to the petitioner. So far as the claim raised by the petitioner in respect of pay fixation is concerned, the same cannot be treated to be barred by limitation. However, as observed by the Apex Court in the aforesaid judgment, the consequential relief claimed by him as regards recovery of amount of arrears, may be barred due to latches and bar of limitation. The Original Application tendered by the petitioner in respect of proper pay fixation or holding him entitled to receive higher pay scale cannot be treated to be barred by limitation. 8 In this view of the matter, the order dated 01.02.2010, passed by the Tribunal rejecting the application tendered by the petitioner, seeking condonation of delay, needs to be quashed and set aside. and same is quashed and set aside. The Tribunal is directed to register and consider the Original Application tendered by the petitioner on its own merits and in accordance with provisions of law. Considering the fact that the petitioner is a {8} wp275910.odt retired employee, we expect the Tribunal to decide the Original Application expeditiously. 9 Rule is accordingly made absolute. However, in the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE B.R.GAVAI JUDGE JUDGE adb/wp275910