2013 Supreme(UK) 747

Uttarakhand Public Services Tribunal
J.C.S. Rawat, J.
Rajendra Prasad Uniyal - Petitioner
Vs.
State of Uttarakhand and another - Respondents
Claim Petition No. 62 of 2010
Decided on : 29-01-2013.

In case of salary, if it is found that the claim of the petitioner for release of the pay scale as claimed is sustainable in law, then the Court can mould the relief but in no event grant any relief for exceeding of a period of three years from the date of presentation of the petition before the Court.

Headnote:

PUBLIC SERVICES TRIBUNAL - JURISDICTION - TERRITORIAL - CAUSE OF ACTION - CONTINUOUS CAUSE OF ACTION - LIMITATION - LACHES - SALARY - DIFFERENCE OF PAY - RELIEF - NO RELIEF FOR PERIOD EXCEEDING THREE YEARS FROM DATE OF PRESENTATION OF PETITION.

Fact of the Case:

Petitioner was appointed as Patwari in Dehradun Nagar Palika since 28.6.1997 at the pay scale of Rs.775-1025/- vide annexure-6 to the claim petition. Thereafter, the Tax Superintendent (Land) recommended his pay scale at Rs. 950-1500/- on 17.9.1997 and the said note was submitted to the Executive Officer. The Executive Officer recommending the case of the petitioner, obtained the approval of the Chairman of the Municipal Board at the pay scale of Rs.950-1500/- on 23.10.1997. Thereafter the said pay scale was not given to him. The claim petitioner submitted a representation to the Municipal Board, Dehradun. Meantime the Nagar Palika, Dehradun was upgraded as Corporation. The office vide note dated 7.11.2001 dealt the representation of the petitioner by the Tax Superintendent (Land) and he again recommended that the petitioner has been confirmed on 14.7.1998 and he should be allowed to draw the pay scale of Rs. 950-1500 (3050-4500) which was revised by the pay commission and made applicable from the year 1996 and he further indicated in his note to the Up Nagar Adhikari that the Chairman of the Nagar Palika has already given him the pay scale of Rs. 950-1500 on 23.10.1997. On the said note the legal opinion was obtained which is Annexure-13 to the claim petition. Annexure-8 is a letter and legal opinion dated 27.1.2002 by which the District Government Counsel after considering the entire record opined that the Government order dated 28.10.1989 granting a pay scale of Rs. 950-1500/ - to Patwaris by the Govt. is applicable in the case of the claim petitioner and he should be given the pay scale of Rs.950-1500 which had been revised retrospectively after the pay commission's report w.e.f. 1986 and later on it was revised as Rs. 3050-4500 w.e.f. 1996. The petitioner was found to be entitled to the pay scale of Rs. 3050-4500/- from the date of appointment. Thereafter the petitioner made several representations before the competent authority to grant the said pay scale to the petitioner. Again that representation was dealt in the year 2008 and a note was submitted on behalf of the office to the Mukhya Nagar Adhikari and it was recommended that the petitioner's case for granting the pay scale of Rs. 950-1500 (3050-4500) be sent to the Government. The M.N.A. referred it to the government vide Annexure-4 to the claim petition. Note sheet did not refer the other orders or the notes in this regard by which the matter has been dealt with. The note sheet Annexure-4 to the claim petition only reveals that the petitioner relied his claim on the basis of the G.O. dated 28.10.1989. Consequent upon the said order, Annexure-3 was sent to the Government. Respondent No.2 has stated in his W.S. that no communication has been received regarding the payment of the salary from the Government till today. When nothing was heard from the side of the Government or from the side of Respondent No.2, the petitioner again made a representation and the same was dealt with by the office and the legal assistant vide its note Annexure-2 to the claim petition in the year 2009 indicating that the Chairman of the Nagar Palika in the year 1997 has approved the pay scale of Rs. 950-1500 (3050-4500) and thereafter the Government notification dated 28.10.1989 granting the Patwaris the pay scale of Rs. 950-1500/- applies in the case of the petitioner so the direction may be issued to allow the said amount. The said note was also submitted but no final order was passed. The Respondent No.2 has only stated in his W.S. that the Annexure-2 was not in accordance with the Government order, hence it is not admitted. It is also admitted to the petitioner that he is still in service as Patwari and he has not retired from the service. District Government Counsel's report, which was submitted in the year 2002, was dealt with by the Tax Superintendent (Land) on 4.2.2006 by submitting a note to higher officers and he again recommended that according to the opinion of the District government Counsel (Civil), he may be given the pay scale of Rs.950-1500(3050-4500). The M.N.A. passed a vague order that whether at the time of the appointment, the post was lying vacant; whether the post on which he was appointed, was in the pay scale of Rs. 950-1500/- and he also asked the office to obtain the position in other Nigams about the pay scale of the Patwaris. Vide Annexure-15 he had been allowed the selection grade and one increment in the year 2009. When nothing was heard from the Government or from the side of the Respondent, this claim petition was filed.

Finding of the Court:

The petitioner is entitled to get the notional pay scale of Rs.950-1500 (3050-4500) instead of Rs. 775-1025/- from the date of his appointment. The petitioner had been claiming the difference of pay since his date of appointment i.e. 28.6.1997. The petitioner is entitled to receive the said difference of back pay only for three years prior to the date of filing of the petition. The rest claim for payment of difference of pay is barred by limitation and laches. However, the Respondent No.2 will fix his notional pay and other benefits with effect from the date of his appointment but he will be entitled to the monetary benefits of three years prior to the date of presentation of the petition.

Issues: 1. Whether the petition is barred by latches and limitation? 2. Whether this Court has territorial jurisdiction to hear the petition? 3. Whether the petitioner is entitled to get the relief claimed in the petition?

Ratio Decidendi: 1. The cause of action in the instant case is a continuing cause of action, so the petitioner is entitled to get the relief from this Tribunal. 2. The entire cause of action arose within the Municipal Board as well as the Nagar Nigam, Dehradun which is situated in the newly carved out State of Uttarakhand, hence this Court has got the jurisdiction to entertain this petition on this ground alone. Apart from that, while determining the jurisdiction, the Court has to see the cause of action also as discussed above. The petitioner has claimed in this petition difference of pay scales as on the date of the petition also. The petitioner has been deprived of day-to-day and month-by-month by not awarding the said pay scale to him. Thus, it is a recurring and continuous cause of action. The cause of action after the creation of State of Uttarakhand by non payment of the salary as claimed by him is accruing month to month. The pay scale which has to be granted, had already been granted by the Chairman, though, the ministerial act had to be discharged by the office not by the functionary. The functionaries working under a constitutional functionary, are creating obstruction for payment of salary. Thus, it being a continuous as well as part cause of action, the petition is maintainable in the Uttarakhand Public Services Tribunal. 3. The petitioner is entitled to get the pay scale of Rs. 950-1500 (3050-4500).

Final Decision: The petition is allowed to the above extent. The parties shall bear their own cost.