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1996 Supreme(All) 1100
HIGH COURT OF ALLAHABAD
R.A.Sharma, D.K.Seth
A P BARTHWAL
Versus
STATE OF U P
Decided On : 27 September 1996
C. M. W. P. No. 39684 of 1990
Mohd.Jafar, Sameer Sharma,
A writ petition challenging an order rejecting a claim for pension is barred by laches and estoppel if the petitioner waits for 12 years after his retirement to file the petition and does not challenge the order rejecting his claim.
Headnote:
PENSION - CALCULATION - SPECIAL PAY - DEPUTATION - INCLUSION - DELAY IN FILING WRIT PETITION - LACHES - WAIVER - ESTOPPEL - WRIT JURISDICTION - EXERCISE OF DISCRETION.
Fact of the Case:
The petitioner, a General Manager in the erstwhile U.P. Government Roadways, was deputed to the Government of Sikkim as General Manager, Sikkim Nationalised Transport. He retired while on deputation and claimed that the special pay he received during his deputation should be included in calculating his pension. The respondents rejected his claim, and the petitioner filed a writ petition challenging the rejection.
Finding of the Court:
The court held that the petitioner's claim was barred by laches and estoppel. The petitioner had waited for 12 years after his retirement to file the writ petition, and he had not challenged the order rejecting his claim, which had been served on him in 1992. The court also held that the petitioner's representation to the respondents was not a remedy appointed by law, and that his pursuit of this remedy did not excuse his delay in filing the writ petition.
Issues: 1. Whether the petitioner's claim was barred by laches and estoppel. 2. Whether the petitioner's representation to the respondents was a remedy appointed by law.
Ratio Decidendi: 1. The court held that the petitioner's claim was barred by laches and estoppel because he had waited for 12 years after his retirement to file the writ petition, and he had not challenged the order rejecting his claim, which had been served on him in 1992. The court also held that the petitioner's representation to the respondents was not a remedy appointed by law, and that his pursuit of this remedy did not excuse his delay in filing the writ petition. 2. The court held that the petitioner's representation to the respondents was not a remedy appointed by law because it was not a statutory remedy.
Final Decision: The court dismissed the writ petition.
The petitioner desig nated as General Manager in the erstwhile U. P. Government Roadways, later re- desig nated as the Regional Manager, was ap pointed on deputation to the Government of Sikkim, on the post of General Manager, Sikkim Nationalised Transport, with the Headquarter at Ganktok. He continued on the said deputation from 20-3-1976 till 31-3-1978 namely the date of the retirement from service of the Government of Uttar Pradesh while on deputation, as aforesaid. On ac count of such deputation the petitioner was paid composite compensatory allowance of Rs. 600 on the petitioners basic pay of Rs. 1500. Out of the said composite compen satory allowance fifty per cent was treated as deputation specialpay as per terms and con ditions of Sikkim Government Notification dated 19th May, 1976. According to the petitioner the said special pay formed part of the petitioners pay and, as such, the same was to be included while computing the petitioners pension. Since he had retired while on deputation therefore, he is entitled to a higher pension, which was denied to him, namely when calculating the quantum of pension, the special pay was omitted. On 4th December, 1976, the petitioner made a representation, (Annexure-2 to the petition explaining the position in support of cal culation of pension. But the said repre sentation was not decided for a long time Ultimately by an order dated 20th April 1987 (Annexure-3 to the petition) the petitioners representation was rejected. In the above background the petitioner claimed the following reliefs:
" (a) issue a writ, order or direction in the nature of mandamus directing the respondents to include Rs. 300 towards pension together with basic salary which the petitioner was getting at the time of retirement.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay arrears of pension and gratuity on the basis of total salary of Rs. 1500+300=1800 together with arrears which was due since 1st April, 1978.
(c) Issue any other writ, order or direction as this Honble court may deem just and proper in the circumstances of the case.
(d) Award cost of the petition in favour of the petitioner. "
2. In the counter-affidavit the respon dent No. 1, State of Uttar Pradesh con tended that after creation of U. P. State Road Transport Corporation ( here in after referred to as UPSRTC) the post of General Manager of the erstwhile U. P. Government Roadways was re-designated as the Regional Manager. The petitioner, who was on deputation in Sikkim, had retired from service on 31-3- 1978. But he continued to serve the Sikkin Rashtriya Parivahan on a consolidated pay of Rs. 2000 per month till 31st March, 1980. The terms and conditions of the petitioners deputa tion to Sikkim Parivahan were fixed by Government Order, dated 22nd June 1977, (Annexure-CAl ). In terms there of the com pensatory allowance sanctioned by ths Sik kim Government could not be included for the purposes of computing pension payable by the Govt. of Uttar Pradesh. The Sikkim Government had issued a Pay Certificate to the petitioner, wherein it was duly mentioned that the petitioners pay was Rs. 1500 per month. The petitioners pension was accordingly calculated and the special pay did not find mention in the last pay certifi cate of the petitioner. The representation of the petitioner, therefore, was rejected by an order dated 28-4-1987 (Annexure-CA2)
3. No rejoinder-affidavit to the said counter-affidavit appears to have been filed. Mohd. Jafar, learned counsel appearing on behalf of the petitioner also did not claim that any rejoinder- affidavit has been filed against the said counter-affidavit.
4. The respondent No. 2, UPSRTC, in its counter-affidavit had pointed out that the petitioner having been retired on 31-3-1978, continued to serve the Sikkim Parivahan till 31st March, 1980 at a con solidated Pay of Rs. 2000 per month. The petitioner was sent on deputation on the terms and conditions
