Back
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUDHANSHU DHULIA, SOUMITRA SAIKIA, JJ.
Union of India, Rep. by the Secretary, Ministry of Defence, New Delhi – Petitioner
Versus
Shri C. Chandra Kumar S/o Late C. Chellathurai – Respondent
W.A. No. 104 of 2020
Decided On : 24-09-2021
Civil Procedure Code,1908 - Benefit of the revised pay scale - Counter affidavit - Claim made by the petitioner is sufficiently belated - Superintendent - Diploma holder in Engineering - Respondent as petitioner before the learned Single Judge is a Diploma holder in Engineering and had joined appellant’s organization on 19.06.1990 as an “Oversee - CPC revised pay scales had recommended pay scale by all posts carrying minimum direct recruitment qualification of Diploma in Engineering - CPC for revision of pay came into effect same was accepted by Government. Although post of Overseer feeder post for promotion to higher post of Superintendent Grade-II, next pay commission i.e. 6th CPC recommended posts of Overseer be upgraded and merged with promotional post of Superintendent - Recommendations of 5th CPC, although accepted by Government was never extended to either posts of Overseer or post of Superintendent Grade-II 6th CPC, the issues relating to post of Overseer - Superintendent Grade-II were specifically dealt with by recommending the pay scale that same be paid to both the posts - It was also recommended that post of Overseer be upgraded and merged with the higher post of Superintendent - Recommendations were made petitioner was already holding post of Superintendent Grade-II – Held, Court have carefully perused the Judgment under appeal – Court find that facts and circumstances of present case view arrived at by the learned Single Judge is a possible view permissible in law – Court do not find any ground to come to a conclusion, different one arrived at by learned Single Judge which will lead to a better approach on the relief granted. Insofar as claim being considered to be time barred, we find that in Tarsem Singh - Apex Court has granted an exception to those services related claims based on a continuing wrong where relief can be granted - Where a service related claim is based on a continuing wrong - granted even if there is a long delay in seeking remedy, with reference to date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury - Apex Court held that if the issues 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 - petitioner/respondent is related to or will affect several others or that it is likely to unsettle settled rights of any third parties - Learned Single Judge had taken the possible view permissible in la - Appellate Court would not normally interfere with such a decision unless both sides agree for a fairer approach relief - Once learned Single Judge having seen the records had come to the conclusion that the industry was not functioning there is no justification in entering a different finding without any further material before Division Bench - Appellate Bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court - unless the Appellate Bench reaches a conclusion that the finding of Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order [Narendra and Co. (P) Ltd. vs. Workmen, W.P. No. 41489 of 2002, decided on 14.3.2008 (KAR)] passed by the Single Judge – Writ Appeal is dismissed
JUDGMENT :
SOUMITRA SAIKIA, J.
1. This Writ Appeal is preferred by the appellants-BRO against the Judgment and Order dated 18.02.2020 passed in W.P. (C) No. 1537/2015 by the learned Single Judge.
2. The case in brief is that the respondent as the petitioner before the learned Single Judge is a Diploma holder in Engineering and had joined the appellant’s organization on 19.06.1990 as an “Overseer.” Subsequently, he was re-appointed as Superintendent B/R-II after due selection on 20.08.1994. The 5th CPC revised pay scales had recommended the pay scale by Rs. 5,000/- to Rs. 8,000/- for all posts carrying minimum direct recruitment qualification of Diploma in Engineering. The said recommendation of the 5th CPC for revision of pay came into effect from 01.01.1996 and the same was accepted by the Government. Although, the post of Overseer (Civil) was the feeder post for promotion to the higher post of Superintendent Grade-II, the next pay commission i.e. the 6th CPC recommended the posts of Overseer be upgraded and merged with the promotional post of Superintendent B/R-II. However, the recommendations of 5th CPC, although accepted by the Government was never extended to either the posts of Overseer (Civil) or the post of Superintendent Grade-II. In the 6th CPC, the issues relating to the post of Overseer (Civil) as well as the Superintendent Grade-II were specifically dealt with by recommending the pay scale of Rs. 5,000/- to Rs. 8,000/- and that the same be paid to both the posts. It was also recommended that the post of Overseer be upgraded and merged with the higher post of Superintendent B/R-II and that the combined cadre be extended the scale of pay to Rs. 5,000/- to Rs. 8,000/- at the entry level. When the recommendations were made, the petitioner was already holding the post of Superintendent Grade-II.
3. Under the circumstances, the respondent as the petitioner before the learned Single Judge claimed that he ought to have been given the benefit of the revised pay scale of Rs. 5,000/- to Rs. 8,000/- as recommended by the 5th CPC and the 6th CPC. Being denied, the recommended pay scale, the petitioner initially filed the writ petition before the Madras High Court vide W.P. (C) No. 10758/2008. A Single Bench of the Madras High Court vide order dated 03.01.2011 allowed the writ petition by directing the respondents to revise the pay of the petitioner in the light of the 5th and 6th CPC report from 01.01.1996 and 01.01.2006 respectively and also to grant the consequential arrears as may be admissible. However, the said order passed by the learned Single Judge of the Madras High Court came to be reversed by a Division Bench of Madras High Court vide Order dated 21.08.2013 on the count that the Madras High Court did not have the territorial jurisdiction to entertain the writ petition. The respondent as the petitioner thereafter filed the writ petition before this Court. The appellant as the respondents resisted the claims of the petitioner by filing their counter affidavit wherein it was contended that the retrospective effect given by the 6th CPC in its recommendation, w.e.f. 01.01.1996 was only for the purposes of pay fixation. However, the actual benefits were to accrue only w.e.f. 01.01.2006. The appellant-BRO as the respondent before the learned Single Judge, contended that the 6th CPC did not specifically recommend the payment of arrears and therefore the actual benefit was given to the respondent-petitioner w.e.f. 01.01.2006. The appellants also contended that the claim made by the petitioner is sufficiently belated to enable him to claim any relief and on the principle enunciated by the Apex Court in the case of Tarsem Singh (supra), the appellant contended that any claim for arrears ordinarily would be for a period of 3(three) years prior to the date of filing the writ petition. The learned Single Judge vide the judgment impugned allowed the writ petition preferred by the respondent as the petitioner and the appellants herein
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
