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Madhya Pradesh High Court · body

2013 DIGILAW 769 (MP)

Hitkishore Goswami v. State of M. P.

2013-07-05

Sujoy Paul

body2013
ORDER 1. By filing this petition under Article 226 of the Constitution, the petitioner has prayed for a command to the respondents to include his service period w.e.f. 2.7.1963 to 2.1.1966 as qualifying service with all benefits. It is further prayed that after counting the said period the petitioner’s gratuity and retiral dues be revised. It is further contended that the State Government has issued various circulars in the meantime, which may be taken into account while revising the retiral dues of the petitioner after counting the aforesaid period. 2. The bone of contention of the petitioner is that he has worked from July 1963 to 3.1.1966 as Lecturer in School Education Department. From 3.1.1966 he became Lecturer in Government College, Narsinggarh-Rajgarh where he worked till 31.5.2004. He retired on attaining the age of superannuation on 31.5.2004. He submits that the service period rendered by him as Lecturer in the School Education Department be counted for calculating and determining the pension. 3. During the course of hearing on 24.7.2012 the attention of this Court was drawn to the letter of School Education Department dated 27.11.2009 (Annexure P-16). In the said letter written to Commissioner, Higher Education, it was requested to add the earlier services of the petitioner for the purpose of calculating his pension with the request that the concerned department be informed. In other words, it is mentioned that the petitioner’s earlier services rendered in the School EducationDepartment be counted with collegiate services for the purpose of calculating qualifying service for pension. 4. This Court on 24.7.2012 directed the respondents to take a final decision on Annexure P-16. In turn, the respondents have passed the order dated 21.9.2012 and rejected the aforesaid claim of the petitioner. This order is called in question by amending the petition. 5. Shri V.K.Bharadwaj, learned senior counsel assisted by Shri Anvesh Jain, criticized the said order and submits that petitioner’s claim on merit is not rejected nor the decision taken in Annexure P-6 aforesaid is altered. The rejection is solely on the ground of delay and laches. He submits that the rejection by applying Article 137 of Limitation Act is totally bad in law and runs contrary to settled legal position. He relied on following three judgments of Supreme Courts :- (i) AIR 1996 SC 669 (M.R.Gupta v. Union of India). (ii) (2008) 8 SCC 648 (Union of India and others v. Tarsem Singh). He submits that the rejection by applying Article 137 of Limitation Act is totally bad in law and runs contrary to settled legal position. He relied on following three judgments of Supreme Courts :- (i) AIR 1996 SC 669 (M.R.Gupta v. Union of India). (ii) (2008) 8 SCC 648 (Union of India and others v. Tarsem Singh). (iii) (2008) 8 SCC 652 (Manjul Srivastava v. Govt. of U.P. and others). 6. Per Contra, Smt. Nidhi Patankar, learned Government Advocate supported the order, Annexure R-1 and submits that the litigant has to approach the Court within a reasonable time. Although no limitation is prescribed for filing the writ petition under the Constitution of India, one has to approach the Court within a reasonable time and no relief can be granted to a sleeping litigant or a fence sitter. 7. I have heard learned counsel for the parties and perused the record. 8. A bare perusal of the rejection order, Annexure R-1, makes it crystal clear that the petitioner’s factual assertion that he had rendered services in School Education Department from July 1963 to 3.1.1966 is not disputed by the respondents. The claim is rejected solely on the ground that the petitioner retired in 2004 and he started giving applications for counting the services from 2004 only. The cause of action, as per respondents, arose on 3.1.1966 and petition is filed after 38 years and, therefore, it has crossed all boundaries of limitation prescribed in any law. 9. The respondents in Annexure R/1 dated 21.9.12 have relied on certain judgments of Courts in support of their contention. However, it is seen that those judgments are dealing with Article 137 of the Limitation Act and do not deal with the question of limitation in a case relating to pension of an employee. 10. In the considered opinion of this Court, the question involved in this matter is no more res integra. The apex Court on more than one occasion had considered the question of limitation in cases where employees have claimed financial benefits. The apex Court opined that where cause of action is recurring in nature, the impediment of limitation will not come in the way of petitioner. In (1989) 1 SCC 546 (P.L.Shah v. Union of India and others) the apex Court was dealing with a case of grant of subsistence allowance. The apex Court opined that where cause of action is recurring in nature, the impediment of limitation will not come in the way of petitioner. In (1989) 1 SCC 546 (P.L.Shah v. Union of India and others) the apex Court was dealing with a case of grant of subsistence allowance. The apex Court opined that nongrant of subsistence allowance gives a recurring cause of action to the employee and his petition cannot be thrown on the ground of limitation. In a case of financial claim [M.R.Gupta(supra)] the apex Court had taken the same view. The view is consistently followed in Tarsem Singh (supra) and Manjul Srivastava (supra). Apart from this, in (1996) 10 SCC 172 (S.R.Bhanrale v. Union of India and others) and (2003) 1 SCC 184 (S.K.Mastan Bee v. General Manager, South Central Railway and another) the apex Court opined that the hurdle of limitation will not come in the way of an employee seeking pension of monetary dues which are recurring in nature. 11. If the case of the petitioner is examined on the anvil of the principle laid down in the said judgments, it will be clear that because of non-counting the services rendered by the petitioner in the school, he is receiving less pension and other retiral dues. He is getting less pension every month which is a continuous cause of action for the petitioner. Needless to mention that non-counting of the said services resulted into less payment of gratuity and other retiral dues. In my opinion, this is a recurring cause of action and the action of the respondents is totally misconceived and runs contrary to the settled legal position, whereby they have rejected the claim of the petitioner by applying Article 137 of the Limitation Act. 12. Consequently, this petition deserves to be allowed. Accordingly, petition is allowed with following directions:- (i) The respondents shall count the services rendered by the petitioner from July 1963 to 3.1.1966 for the purpose of qualifying services for counting pension, gratuity and other retiral dues. (ii) While refixing and revising the pension and retiral dues the respondents shall consider whether petitioner is entitled for any benefit as per the circulars issued by the State Government, Annexure P-12 (cumulative). (iii) The aforesaid exercise be positively completed within 60 days and revised pension and consequential benefits arising thereto be paid to the petitioner within the aforesaid time. (ii) While refixing and revising the pension and retiral dues the respondents shall consider whether petitioner is entitled for any benefit as per the circulars issued by the State Government, Annexure P-12 (cumulative). (iii) The aforesaid exercise be positively completed within 60 days and revised pension and consequential benefits arising thereto be paid to the petitioner within the aforesaid time. If it is not done within the aforesaid period, it will carry 6% interest till the date of actual payment. No costs.