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Judgment
Veerender Singh Siradhana, J—The petitioners, relying upon the judgment/order dated 18th March, 1997, rendered in SBCSA No. 301/1996 (RSEB through Secretary Vs. Sh. Raj Kishore), decided on 18th March, 1997, have instituted the present writ application, praying for the following relief(s):
"It is therefore prayed that your Lordships may kindly be pleased to accept and allow this writ petition and your Lordships may kindly be pleased to direct the non-petitioners to re-fixed the pay of the petitioners in accordance with the Rajashan Civil Services (RNPS) rules, 1976 corresponding to Rajasthan Civil Service (RNPS) rules, 1983 and Rajasthan Civil Service revised pay scale rules, 1987 and accordingly the non-petitioners may be directed to release the arrears of salary to the petitioner with @ 18% interest per annum. The benefits of pay revision declared by Government of Rajasthan may also be awarded to the petitioners and accordingly the petitioners may be fixed in revised pay scales the non-petitioner directed to fix the pay of the petitioners with all consequential benefits.
Any other appropriate writ order or direction which may be considered just and proper in the case and facts and circumstances of the case may kindly also be issued in favour of the petitioners."
Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy needs to be first noticed. In the backdrop of an agreement entered into between the Secretary, Rajasthan State Electricity Board, (RSEB) and the President, Prantiya Vidhyut Mandal Mazdoor Federation, Jaipur, the matter was referred under the provisions of Section 10(B) of the Industrial Disputes Act, 1947 (for short, the Act of 1947) for arbitration on 30th April, 1983, vide notification published on 26th September, 1983. The relevant terms of reference reads thus:
"Wages Increase:
(A) What should be the Minimum Wages for regular unskilled workmen of Rajasthan State Electricity Board in Pay Scale No. 1 with effect from April 1, 1980?
(B) What should be the wage structure of different categories of workmen of Rajasthan State Electricity Board covered under Pay Scale No. 1 to 6 with effect from April 1, 1980?
(C) What should be the rules of fitment in the revised Pay Scales with effect from April 1, 1980?
(D) Whether the demand of the workmen for minimum guaranteed increase to all existing regular workmen in scale No. 1 to 6 is just and proper? If so, what should be minimum guaranteed increase with effect from April 1, 1980?."
Thus, wage structure of different categories of workmen of erstwhile RSEB, within the ambit of pay scale No. 1 to 6 w.e.f. 1st April, 1980, was the moot question for determination by the arbitrators. The case at hand relates to pay-scale No. 6 i.e. 550-960, which was revised to 720-1340. The reference was published in the month of May, 1983, and awarded on 20th May, 1985. One Shri Raj Kishore, in the pay scale of Rs. 550-960, was promoted as a Settlement Officer on 27th March, 1982 in the scale of 620-1100. The erstwhile respondent-RSEB made orders on 7th August, 1985 for implementation of the award with clarification making it applicable to the Board''s employees in the pay scale during the period 1st April, 1980 to 31st August, 1983 and the employees appointed on or after 1st April, 1983, were to be fixed at minimum of the revised pay-scales etc. Other orders dated 19th December, 1988 and 10th May 1989, were also issued for the purpose of implementation of the award dated 20th May, 1985, which resulted into reduction in pay and as a consequence recovery was to be effected and the excess amount, if any, paid was to be adjusted from the future pay of the employees.
Shri Raj Kishore challenging the legality, validity and correctness of the orders issued for the purpose of implementation of the award dated 20th May, 1985, instituted a civil court for he did not fall within the 6th pay scale as had already been promoted to the post of Settlement Officer in the scale of Rs. 620-1100. The civil suit was dismissed vide order dated 19th August, 1994.
The First Appellate Court of Additional District and Sessions Judge, Kota, decreed the suit vide order dated 22nd August, 1995 quashing the order dated 7th August, 1985, 19th December, 1988, 10th May, 1989 and 1st April, 1989.
The Civil Second Appeal No. 301 of 1996, instituted against the judgment and decree dated 22nd August, 1995, was dismissed on 18th March, 1997; which is the basis for the claim staked by the petitioners.
Learned counsel for the petitioner, Mr. Rajveer Sharma, reiterating the pleaded facts and grounds of the writ application heavily relied on the judgment rendered in the Civil Second Appeal in the case of Shri Raj Kishore (supra) to sustain the claim of the petitioners.
According to the learned counsel, the petitioners were already accorded selection grade and were not within the 6th pay scale as would be evident from the details indicated in the schedule annexed to the writ application.
Learned counsel further asserted that the petitioners who entered the service of the erstwhile respondent-RSEB as ''Junior Engineers'' were accorded promotion as ''Assistant Engineers'' against the permanent posts and they were not ''workmen'', and therefore, the award dated 20th May, 1985, was not applicable to them.
The pay of the petitioners was correctly fixed and no revision of pay scale was warranted in their case. Moreover, the respondents could not have revised the pay scales of the petitioners so as to make them to suffer the loss of pay which they were earlier getting before the alleged revision of pay without any notice and opportunity of hearing. Moreover, the petitioners did not fall within the pay scale No. 6, to which the arbitration award was applicable, therefore, the action of the respondents in the name of implementation of the award made by the arbitrators, is absolutely illegal, arbitrary and violative of principles of natural justice.
The arbitration awarded the minimum pay-scale to ''unskilled'' workers @ Rs. 400 etc. w.e.f. 1st April, 1980 and also revised pay scales of the employees who were getting different pay-scales from 1 to 6. The lower Appellate Court, in the case of Raj Kishore, held that all those persons who had been promoted before the matter was referred to arbitration were not covered within the reference, and therefore, the order dated 7th August, 1985, and subsequent orders had no application to those employees which included the petitioners as well.
In response to the notice of the writ application, the respondents has filed their counter affidavit raising preliminary objections for the re-fixation has been carried out in accordance with the Pay Scales Rules, 1976 and 1983, respectively. Further, the institution of joint writ application has been objected for the facts and cause of action is different qua each and every petitioner. The erstwhile respondent-RSEB has also raised the issue of delay and laches for the petitioners did not raise any grievance to the action which has now been complained of by way of institution of the present writ application in the year 1998. Thus, the writ application suffers with the vice of delay and laches deserves to be dismissed on that count alone.
Learned counsel for the respondents, reiterating the pleaded facts and grounds of the writ application further contended that though there is no difference in the case of the petitioners and that of Raj Kishore on merits but the cause of action, if any, which dates back to the year 1985 was raised after an inordinate, undue and unexplained delay of more than a decade, and therefore, the writ application deserves to be dismissed on that count alone.
In response to the objection as to delay, the learned counsel for the petitioners has placed reliance on the opinion of the Hon''ble Supreme Court in the case of M.R. Gupta Vs. Union of India and others, AIR 1996 SC 669 : AIR 1995 SC 669 : (1995) 71 FLR 886 : (1996) LabIC 399 : (1995) 5 SCALE 29 : (1995) 5 SCC 628 : (1995) 2 SCR 852 Supp : (1995) 2 UJ 689 .
I have heard the learned counsel for the parties and perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
The fact that the issue was successfully agitated by a similarly and identically situated one of the employees of the erstwhile respondent-RSEB namely Shri Raj Kishore is not in dispute.
A glance of the order rendered by a Coordinate Bench of this Court in S.B. Civil Second Appeal No. 301 of 1996, would reveal the controversy is no more res-integra for the petitioners could not have been subjected to revision of pay scale as they did not fall within the ambit of pay-scale No. 1 to 6. Moreover, the petitioners were not ''workmen'', and therefore, the orders issued in the process of implementation of the award dated 20th May, 1985, could not have been applied to their cases in the matter of revision of pay-scales.
The objection as to the delay in the matter of pay fixation and claim for arrears fell for consideration of the Hon''ble Apex Court of the land in the case of M.R. Gupta (supra). The Hon''ble Supreme Court held that so long as the incumbent is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. The Hon''ble Apex Court of the land in the case of M.R. Gupta (supra), while dealing with the issue of delay of 11 years in the matter of pay fixation, held thus:
"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 month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant''s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant''s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant''s claim as ''one time action'' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Others vs. Mattapalli Raju1950 (52) BOMLR 181 (Federal Court) ."
For the reasons and discussions hereinabove, the writ application succeeds and is hereby allowed.
In the result, the respondents are directed to carry out the re-fixation of pay of the petitioners in accordance with the relevant rules including benefits of revision declared by the Government of Rajasthan from time to time with all consequential benefits on notional basis. Actual monetary benefits including arrears will be admissible only from three years preceding filing of the writ application i.e. 27th August, 1995 as the writ petition was instituted on 27th of August, 1998.
In the facts and circumstances of the case, there shall be no order as to costs.