1 aswp-7502-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7502 OF 2011 Mr. Mazharuddin Moizuddin Farooqui .. Petitioner Vs. The Commission of Police for Greater Bombay and ors. .. Respondents Ms. V.K. Jagdale for petitioner. Mr. C.R. Sonawane, AGP for respondent nos.1 to 3. CORAM: B. H. MARLAPALLE & P. D. KODE, JJ. OCTOBER 04, 2011. P.C. 1. We have heard the learned counsel for the petitioner, who is aggrieved by the order passed by the Maharashtra Administrative Tribunal on 6/5/2011 thereby dismissing Misc. Application No. 505 of 2010 filed for condonation of delay caused in approaching the Tribunal in O.A. No. 1039 of 2010. The main prayer of the petitioner before the Tribunal was regarding his pay fixation from the year 1994 onwards on the ground that his juniors in the post of Constable/ Head Constable were drawing more salary. The State Government filed affidavit-in-reply and opposed the application for condonation of delay. It was pointed out that the petitioner was for the first time appointed as a Police Constable with the Mumbai Police Force on 3/8/1970 and was promoted as Police Naik on 1/11/1992. He was subsequently promoted to the Police Head Constable on 27/6/1994 2 aswp-7502-11 and to the post of Assistant Sub Inspector on 15/3/2003. He retired on superannuation on 30/7/2007. 2. The Government of Maharashtra had issued a GR dated 6/11/1984 and called upon the Government servants to fill up the option form within a period of one month from the date of promotion. When the petitioner was promoted to the post of Police Naik on 1/11/1992, he did not exercise his option. Similarly, when he was promoted to the post of Police Head Constable on 27/6/1994 and to the post of Assistant Sub Inspector on 15/3/2003, he did not furnish his option form as required and this affected his pay fixation. 3. The learned counsel for the petitioner submitted that right from 7/12/1993 onwards, the petitioner was submitting representations and his last such representation, while in service, was dated 3/9/1996. The representations were not decided. After he retired on 30/7/2007, he submitted one more representation on 15/7/2008, second representation on 6/11/2008 and as there was no reply, he finally approached the Tribunal but belatedly. As per the learned counsel for the petitioner, the O.A. was beyond time by only one month and the Tribunal ought to have considered these peculiar circumstances to condone the delay especially when the fixation of salary gives rise to a continuous cause of action and the issue of limitation would not operate. In support of these contentions, she relied upon the following decisions of the Supreme Court:- (a) M. R. Gupta vs. Union of India [AIR 1996 SC 669] 3 aswp-7502-11 (b) Union of India vs. Tarsem Singh [2008 (8) SCC 648] 4. The Tribunal noted that the original applicant had approached it after 17 years, though he was required to approach within six months after submission of his representation or if it was rejected. Section 21 of the Administrative Tribunals Act, 1985 (for short the Act) prescribes the period of limitation to approach the Tribunal. Section 21(1)(b) of the Act states that in a case where a representation has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. As per subsection (3) of Section 21, notwithstanding anything contained in sub-section (1) an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 5. In the case of M.R. Gupta (Supra), the Supreme Court stated, “5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. 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 4 aswp-7502-11 month when he is paid his monthly salary on the basis of wrong computation made contrary to rules....” In the instant case, the petitioner retired from service on 30/7/2007 and, therefore, the concept of continuing cause of action was not available to him after his retirement. 6. In the case of Tarsem Singh (Supra) the Supreme Court stated, “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 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......” The petitioner’s representation was rejected by a letter dated 5 aswp-7502-11 4/8/2009 and he approached the Tribunal on 13/9/2010 i.e. after 13 months and that too without furnishing any explanation. His first cause of action arose when he was promoted to the post of Police Naik on 1/11/1992 and again when he was promoted to the post of Head Constable and Assistant Sub Inspector. Therefore, for pay fixation for the post of Head Constable, he approached the Tribunal almost after 16 years and for the pay fixation in the post of Assistant Sub Inspector he approached the Tribunal after seven years. Viewed in any case, he had not approached the Tribunal within the period of limitation as prescribed in Section 21 of the Act and he is a retired employee and, therefore, the continuing cause of action would not be applicable to his case. 7. At the same time, as per GR dated 6/11/1984, he was required to furnish his consent which he did not do in 1993, 1994 as well as in March, 2003 and if his case is reopened and allowed by the Tribunal, there will be others who were similarly placed and would require the Tribunal or State Government to reopen their settled cases over the last about 20 years or so. The Tribunal has considered the petitioner’s case with all the issues raised and the judgment cited and in our opinion, the view taken by the Tribunal cannot be held to be erroneous so as to cause interference in this petition. 8. Hence, the petition is rejected. (P. D. KODE, J.) (B. H. MARLAPALLE, J.)