R. Subramanian vs Central Administrative Tribunal and Others

D. Hariparanthaman, J.—The petitioner joined the services of the third respondent as Serviceman (Aircondition and Refrigeration) on 23.01.1968. His services were declared permanent in the said post from 01.04.1973 by an order dated 04.07.1978 of the second respondent. He was compulsorily deputed to the newly constituted fifth respondent with effect from 01.09.1973. The compulsory deputation was u/s 12(1)(f) of the Airport Authority Act, 1971. However, his services were absorbed by the fifth respondent on 01.09.1977 i.e. he had put in 9 years 7 months and 7 days of service in the second respondent organisation. After his absorption, the aforesaid order dated 04.07.1978 was passed declaring permanent in the second respondent organisation from 01.04.1973. The petitioner requested the second respondent to shift the date of his absorption with the fifth respondent from 01.09.1977 to 01.04.1978 in order to make him fully eligible for availing pension.

The petitioner brings to our notice lot of correspondences relating to "shifting of the date of absorption" and more particularly, the letter No. 23/1/2003-Admn.734 dated 28.02.2004 of the third respondent addressed to the second respondent, recommending for "shifting of the date of absorption". The relevant portion of the said letter is as follows:

2.As explained in the above paragraphs, IAAI has no objection to consider for shifting the date of absorption of Shri. R. Subramanian from 1.9.77 to 23.1.78 to make him eligible for pensionary benefits.

There is also another letter in letter No.23/1/2004/Admn.881 dated 10.03.2004 of the third respondent addressed to the second respondent recommending "shifting of the date of absorption" in the following words:

As already recommended in this office letter dated 17/2/04 the shifting the date of absorption of Shri. R. Subramanian from 01/09/77 to 23/01/78 to make him eligible for pensionary benefits may be considered.

There is yet another letter in letter No.23/1/2004/Admn.1637 dated 23.04.2004 of the third respondent addressed to the second respondent in this regard and the relevant portion of the letter is extracted here-under:

Under the circumstances explained above the case of R. Subramanian for shifting the date of absorption from 01/09/77 to 23/01/78 to make him eligible for pension may kindly be taken up again with the Department of Pension and Pension Welfare.

In another letter in letter No. 23/1/2003/Admn./2168 dated 22.06.2004 of the third respondent addressed to the second respondent in this regard, the relevant passage is as follows:

Kindly refer to DGW''s above letter dated 1.6.04 forwarding the observation of Department of Pension Welfare dated 26.5.04 on the subject. This letter gives an impression that we are requesting for relaxation of 10 year service condition for pensionary benefit. This is not the case. What we have requested is only for shifting of date of absorption of Shri R. Subramanian in IAAI from 1.9.77 to 23.1.78 to make him eligible for pension on the lines of another similar case done in the Ministry of Civil Aviation. In this connection the kind attention of DGW is invited to DGCA Letter No. A-35011/3/78/EW(3) dated 28.7.80 in which the shifting of date of absorption in respect of their employees has been acceded to. (copy enclosed)

The case may kindly be reviewed in the light of above and the matter be taken up again with the Department of Pension and Pension Welfare.

The aforesaid letters make it clear that the Department was in favour of "shifting of the date of absorption" of the petitioner from 01.09.1977 to 23.01.1978, so that he would complete 10 years of service that makes him eligible for pension. In fact, in those letters, it was made clear that the fifth respondent had no objection for such a course. Those letters also disclose that when the employees from Civil Aviation Department were absorbed in the services of the fifth respondent, the "shifting of the date of absorption" was done to 16 employees and even the shifting was done to the extent of about two years, while in the case of the petitioner, it is only for less than five months.

However, the third respondent, vide order No. 23/1/2003-Admn.3462 dated 27.09.2004, rejected the request of "shifting of the date of absorption" with the fifth respondent. The said order reads as follows:

Please refer to your representation dated 30/4/2004 regarding shifting of date of absorption in IAAI to become eligible for pension. The matter has since been examined in consultation with the Ministry of Urban Development and it is regretted to intimate that the request has not been agreed to.

Hence, the petitioner filed Original Application before the Tribunal in O.A.No.424 of 2005 to quash the order dated 27.09.2004 passed in order No.23/1/2003-Admn.3462 by the third respondent and for consequential direction to shifting of the date of absorption of his services with the fifth respondent, so as to avail the pension benefits. However, the Tribunal dismissed the said O.A. on 17.12.2005, primarily on the ground that the application was time barred. Hence, the petitioner has come forward with the present writ petition.

We have heard the submissions made on either side.

The Tribunal failed to take into account the facts that stare at one''s face i.e. the concerned Department viz., Central Public Works Department, recommended for "shifting of the date of absorption" in various letters mentioned above. Likewise, the Tribunal failed to take note of the fact that the fifth respondent had no objection for "shifting of the date of absorption" of services with them. The Tribunal also lost sight of the fact that instances were given by the third respondent that in the case of employees of Civil Aviation Department, "shifting of the date of absorption" was made for availing pension when they were absorbed in the services of the fifth respondent. Therefore, denying similar benefit to the petitioner is highly arbitrary and discriminatory and violative of Article 14 of the Constitution. The learned Counsel for the petitioner relies on the following decisions of the Honourable Apex Court in this regard:

(i) Ajay Jadhav v. Government of Goa reported in 1999(4) L.L.N. 73

(ii) M. Singh v. State of Haryana reported in 2008(4) L.L.N. 113

Without taking into account those facts, the Tribunal mechanically rejected the same on the ground of limitation.

Since the question of getting pension being continuous cause of action and it is held that the petitioner is otherwise entitled to pension, then he has a right to receive pension every month. Therefore, while considering the question of latches and delay, when there is continuing cause of action, the right to get such pension does not get permanently barred, but the right to get arrears alone get barred by the principles of limitation. In this connection, the decision of the Honourable Supreme Court made in UNION OF INDIA v. TARSEM SINGH reported in 2008 (2) S.C.C. 765 can be referred, wherein the Supreme Court observed as follows in paragraphs 7 and 8 at page 768:

To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.

Therefore, in our opinion, even though the present petitioner could have claimed for "shifting of the date of absorption" earlier, since he filed the case before the Tribunal in the year 2005, we deem it proper that the benefits shall be extended to him from the date of such application and not from an earlier date, as has been submitted by learned Counsel for the petitioner. In the present case, as already noticed, since the concerned authorities had given benefits to similarly placed employees, there was no reason to deny the similar benefits to the present petitioner and to treat the petitioner differently. Therefore, we allow the writ petition in part and observe that the order of absorption of the petitioner shall be deemed to have been postponed till the date when he would have completed 10 years of service under the second respondent and on that basis pro-rata pension payable to the petitioner shall be calculated and paid to the petitioner. However, arrears would be paid from the date on which the Original Application was filed before the Tribunal. The petitioner is required to refund the gratuity already received with 9 per cent simple interest per annum. The Department will adjust the arrears and pay the balance to the petitioner. If any amount is payable by the petitioner, by calculating such amount with interest at 9 per cent per annum, the petitioner would refund the same within a period of three months from the date on which the communication would be received. The order shall be complied with within a period of three months from the date of receipt of a copy the order. No costs.