IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WA.No. 117 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.14697/2000 .................... APPELLANT(S): RESPONDENTS ---------------------------------- 1. THE OFFICER -IN-CHARGE EME RECORDS, SECUNDERABAD,AP. 2. THE CONTROLLER OF DEFENCE ACCOUNTS (PENSION),ALLAHABAD, UP. 3. THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI. 4. GOVT. OF INDIA, REPRESENTED BY THE SECRETARY TO MINISTRY OF DEFENCE, NEW DELHI. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SR.PANEL RESPONDENT(S): PETITIONER ------------------------- T.G.HARIDAS, EX.NO.7119565 CFN.VM (MV) THOTTUNGARA HOUSE, KARIYATHANKAVU P.O. BALUSSERY VIA, KOZHIKODE DISTRICT, KERALA. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- W.A.No. 117 of 2009 ---------------------------------------------- Dated this the 29th day of July, 2011 JUDGMENT Antony Dominic, J. The respondents in O.P.No. 14697 of 2000 are the appellants. The respondent herein was enrolled in the Army as a Mechanic Draftsman on 20.3.1973 and was discharged from service on 7.4.1981 due to illeness which was diagnosed as Neurosis. He filed O.P.No. 14697 of 2000 seeking a declaration that he is entitled to get disability pension. By the judgment dated 22nd September, 2000, the Original Petition was allowed with the direction as follows: “....In the above circumstances in the absence of any proof to the contrary, I must hold that the disease of “Neurosis” contracted by the petitioner is attributable to military service. Accordingly, Exts.P3 and P5 are quashed, and the respondents are directed to sanction and pay disability pension to the petitioner. Arrears shall be paid within three months from the date of receipt of a certified copy of this judgment and the petitioner shall be continued to be paid disability pension every WA.117/09 2 month. If the respondents do not pay arrears within the three months as directed above, the amounts shall carry interest at the rate of nine per cent per annum from the date of discharge till the date of payment.” It is aggrieved by this judgment that the instant appeal is filed. 2. When the appeal was taken up, though the learned counsel for the appellants reiterated the contentions in the pleadings, we found substance in the plea that the direction in the judgment for payment of arrears and interest was illegal. 3. We heard the learned Senior Counsel Sri.Grashious Kuriakose appearing for the respondent. 4. In support of this plea, the learned counsel relied upon the Apex Court judgment reported in Union of India and others v. Tarsem Singh ( (2008)8 SCC 648) where it has been held as follows: “6. In Shiv Dass v. Union of India this Court held: (SCC p.277), paras 8 & 10) '8. .... 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 WA.117/09 3 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. * * * * 10. 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.' 7. 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 WA.117/09 4 exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of othe issue would affect the settled rights of third arties, then the claim will not be entertained. For example, if the issue relates to payment or refixation 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. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the 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. 8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of wsrit petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not WA.117/09 5 to have granted interest on arrears in such circumstances.” 5. In our considered view, the issue raised by the learned counsel for the appellants is fully covered in his favour, in view of the principles laid down by the Apex Court in the decision referred to above. In the circumstances, the judgment under appeal will stand modified directing that the arrears as ordered shall be paid only for a period of three years prior to the date of filing of the Writ Petition and the direction for payment of interest will also stand deleted. With the above modifications, the Writ Appeal is disposed of. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs