Bharatbhai Natverlal Raval vs State of Gujarat and Others

V.M. Sahai, J.—ADMIT. With the consent of the learned Counsel for the parties, the matter is taken up for final disposal.

The Appellant was appointed as work-charge labour in Class-IV on 6.9.1960 of Department of Respondent No. 2. He passed his Wireman examination and he was promoted on 6.10.1965 as Pump Operator. It is not disputed that the Appellant has been retired by the Respondents on 31st October 1996. After three years of his retirement, in 1999, the Appellant filed writ petition, praying following two reliefs:

(A) The Hon''ble Court may be pleased to pass a Writ of mandamus or any other appropriate Writ to direct the Respondents for the fixing the pay Pay Scale of the Petitioner in the Grade in the Grade of Class-III Employee.

(B) be pleased to direct the Respondents to pay the differences of both the Pay Scales from 6.10.1965 and also to pay all the consequential reliefs and benefits available to the Petitioner in Class-III Grade.

The learned Counsel for the Appellant has urged that the pay of the Appellant was wrongly fixed and he was entitled for pay scale of Class-III employee. The learned Single Judge by his judgment dated 29.3.2010, passed in Special Civil Application No. 8291 of 1999, rejected the claim of the Appellant and held that the Appellant was not entitled for pay scale of Class-III employee.

The learned Counsel for the Appellant has urged that throughout the service career of the Appellant, his pay scale has wrongly been fixed and even if the arrears are not paid, he is entitled for revised pension. He has further urged that the payment of salary or pension is recurring cause of action to the Appellant. This question has been considered by the Hon''ble Apex Court and the Hon''ble Apex Court did agree that payment of salary and pension is recurring cause of action. But, if pay scale is challenged after retirement, then delay and laches will come in the way. The Hon''ble Apex Court in a judgment reported in State of Orissa and Another Vs. Mamata Mohanty, , in para 52 to 54, has held as under:

In the very first appeal, the Respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter. (See Lachhmi Sewak Sahu v. Ram Rup Sahu and Kamlesh Babu v. Lajpat Rai Sharma)

Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the Petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India, State of Karnataka v. S.M. Kotrayya and Jagdish Lal v. State of Haryana.).

In view of the decision of the Hon''ble Apex Court, we are of the considered opinion that the Appellant cannot challenge, after his retirement from service, that his pay scale has wrongly been fixed in his entire service career, and pray for correction of pay scale and grant of new pay scale.

For the aforesaid reasons, we do not find any reason to interfere with the judgment and order of the learned Single Judge. This appeal fails and is accordingly dismissed.