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2022 DIGILAW 41 (TRI)

Ratan Chakraborty v. State of Tripura

2022-01-31

S.TALAPATRA

body2022
JUDGMENT 1. Heard Mr. S Lodh, learned counsel appearing for the petitioners as well as Mr. D Bhattacharjee, learned GA assisted by Mr. S Saha, learned counsel appearing for the respondents. 2. This is the second round of litigation by these 9 (nine) petitioners. On earlier occasion they filed the writ petitions separately. The petitioner No. 1, Sri Ratan Chakraborty, filed the writ petition being WP(C) No. 140/2020, the petitioner No.2, Sri Sudhamoy Chakraborty, filed the writ petition being WP(C) No. 137/2020, the petitioner No.3, Sri Shanti Bhusan Chakraborty, filed the writ petition being WP(C) No. 138/2020, the petitioner No.4, Sri Mrinal Kanti Chakraborty, filed the writ petition being WP(C) No. 139/2020, the petitioner No.5, Sri Siddhartha Chakraborty, filed the writ petition being WP(C) No. 139/2020, the petitioner No.6, Sri Ashish Kumar Dey, filed the writ petition being WP(C) No. 141/2020, the petitioner No.7, Sri Kalipada Paul, filed the writ petition being WP(C) No. 142/2020, the petitioner No.8, Smt. Tamashi Choudhury, filed the writ petition being WP(C) No. 143/2020, the petitioner No.9, Sri Arun Kumar Singha, filed the writ petition being WP(C) No. 144/2020. All those writ petitions were disposed of by a common order dated 26.02.2020 by a single judge of this court, observing as follows: 'Considering the issues involved, in my opinion, it would be appropriate that the Government first examines the contentions of the petitioners and takes a decision in this regard. Let the respondents take a final decision on the representations of the petitioners within a period of 2(two) months from today. Decision recording brief reasons may be conveyed to the petitioners. Needless to state if the decision of the Government aggrieves the petitioners, it would be open for them to take recourse to legal remedies.' 3. By the subsequent order dated 12.03.2021 the learned single judge had clarified that further decision of the authorities has become redundant. By the memorandum dated 07.01.2021 (Annexure 4 to the writ petition), the respondents have taken the decision as asked to be taken by this court. By the subsequent order dated 12.03.2021 the learned single judge had clarified that further decision of the authorities has become redundant. By the memorandum dated 07.01.2021 (Annexure 4 to the writ petition), the respondents have taken the decision as asked to be taken by this court. It has been observed by that order that the petitioners are allowed to automatic upgradation of pay on their completion of four years of service during the period under ROP Rules 1988, prior to 01.01.1996, in line of the similar benefits, as extended to the stenographers of the Tripura Government Stenographers' Service, subject to adherence of the following conditions: (i) in all cases, first automatic financial upgradation after 4 years service shall not be allowed to Courts Stenographers' if they are promoted to next higher post by that time; (ii) in all cases, the Court Stenographers' concerned, who receive first authomatic financial upgradation after 4 years service, shall be entitled to second financial upgradation after total 17 years of continuous and satisfactory service, subject to condition that they are not promoted to the next higher post by that time; (iii) Applying the principle of fixation of pay as laid down in the judgment delivered in WP(C) No. 245/2007 by Hon'ble High court of Tripura and similar cases, Court Stenographers concerned who have retired shall not be entitled to any arrear of pay. They shall, however, be entitled to notional fixation of pension prospectively from the date of this memorandum. Those of the petitioners of WP(C) No.136/2020 and nine other connected Writ Petitions who re in-service are entitled to notional fixation of pay with actual financial benefit prospectively from the date of this memorandum.' 4. The petitioners are, as it appears, aggrieved by the condition (iii), whereby it has been succinctly stated that those who have been retired shall not be entitled to arrear pay. Moreover, this benefit will be prospective from the date of the said memorandum i.e. from 07.01.2021. 5. Mr. Lodh, learned counsel for the petitioners has submitted that there were several writ petitions filed by the stenographers borne in the Tripura Government Stenographers' Service. In all those writ petitions, under the similar circumstances, the petitioners were given retrospective benefit notionally from the following day when the stenographers [the petitioners] had completed 4 years of service in the Grade IV(b) of the Tripura Government Stenographers' Service. In all those writ petitions, under the similar circumstances, the petitioners were given retrospective benefit notionally from the following day when the stenographers [the petitioners] had completed 4 years of service in the Grade IV(b) of the Tripura Government Stenographers' Service. They had been automatically moved to the pay scale of Grade IV(a) of the Tripura Government Stenographers' Service immediately after completion of 4 years of service. 6. However, Mr. Lodh, learned counsel has pointed out that the actual financial benefit was granted from the day falling three years preceding to the filing of the writ petitions. Mr. Lodh, learned counsel has urged for similar benefits for the present petitioners. 7. Mr. Bhattacharjee, learned GA appearing for the respondents did not dispute the facts relating to the relief granted to the petitioners in the other writ petitions filed by the writ petitioners who were borne in the Tripura Government Stenographers' Service. Mr. Bhattacharjee, learned GA however, has submitted that it appears from the record that the Finance Department was not adequately apprised of those decisions. 8. However, having regard to the long delay in filing the writ petitions, Mr. Bhattacharjee, learned GA has submitted that it cannot be denied that the petitioners were deprived of the said benefit and that continued on every month when they were given their pay and allowances. He has also relied on the decision of the Apex court in Union of India and Ors. v. Tarsem Singh reported in (2008) 8 SCC 648 where the apex court has enunciated the law unequivocally as under- '4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A 'continuing wrong' refers to a single wrongful act which causes a continuing injury. 'Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [ AIR 1959 SC 798 ] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31) '31. ... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. ... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.' 5. In M.R. Gupta v. Union of India [ (1995) 5 SCC 628 : 1995 SCC (L&S) 1273 : (1995) 31 ATC 186 ] the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1-8-1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held: (SCC pp. 629-30, para 5) '5. ... 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 if 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. 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....' 6. In Shiv Dass v. Union of India [ (2007) 9 SCC 274 : (2007) 2 SCC (L&S) 395] this Court held: (SCC p. 277, paras 8 & 10) '8. ... The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. *** 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. ... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.' 7. 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. 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. 8. 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.' [Emphasis added] 9. Thus, it appears that a belated service related claim may be rejected on the ground of delay and laches, but it can be granted even after a long delay in seeking the remedies, if a continuing wrong creates a continuing source of injury. It ought not to have granted interest on arrears in such circumstances.' [Emphasis added] 9. Thus, it appears that a belated service related claim may be rejected on the ground of delay and laches, but it can be granted even after a long delay in seeking the remedies, if a continuing wrong creates a continuing source of injury. As such, to balance, the actual benefits may be curtailed to the extent of 3 (three) years prior to the institution of the writ petition. 10. For purpose of disposal, this court would look back to the decision of this court as passed in Anjan Debroy v. State of Tripura [judgment dated 23.07.2014 delivered in WP(C) No.245/2007], (Annexure-3 to the writ petition), where a single Judge of this court while granting the relief has observed that the petitioners are entitled to get automatic movement to the higher grade on completion of 4 years of service in lower grade as junior grade stenographers. There pay shall be refixed accordingly, by giving them the benefit but monetary benefit shall be restricted from 14.06.1996 i.e. 3 years prior to the filing of the Civil Rule No. 301 of 1999. 11. In that case, the judgment was made in personam. As a result, similarly situated government stenographers did not get any benefit out of the said judgment. Most of the stenographers, similarly circumstanced, had approached this court by filing a huge bunch of writ petitions including Prabir Pal v. State of Tripura. In the said writ petition being WP(C) No. 371/2019, by the judgment and order dated 15.12.2016, along with other writ petitions, this court had occasion to observe as follows: 'Having held so, all these writ petitions are allowed in the same terms of the judgment and order dated 24.07.2014 as delivered in WP(C) No.245/2007 by this Court. The petitioners shall be given the movement on their completion of 4(four) years in the Grade V(b) to Grade V(a) of the service and with all benefits. However the pay shall be fixed afresh on the day when the petitioners will move to the next grade i.e. Grade V(a) on completion of 4(four) years of the service, but they will not get the financial benefit from the said day. The petitioners have approached this court belatedly. However, as the cause is perennial in nature, these writ petitions have been held not to be hit by laches. The petitioners have approached this court belatedly. However, as the cause is perennial in nature, these writ petitions have been held not to be hit by laches. The actual financial benefits shall be paid to the petitioners from a date 3(three) years preceeding from the date of institution of the writ petition on bringing over the entitlements notionally from the day of their movement to that day, proceeding 3(three) years from the day of institution of the writ petition. To illustrate in the case of Prabir Pal, the writ petitioner in WP(C) No.371/2016, the date from which that petitioner will get the actual financial benefit would be 26.05.2013, the day proceeding 3(three) years of the institution of the writ petition. The financial benefit in terms of the above be recorded in the service records of the petitioners and the arrears that to be paid, are to be paid within 4(four) months from the day when the writ petitioners shall submit a copy of this order to the respondent No.2.' 12. This court does not find any difference in the background facts of those writ petitions and the present writ petitions and hence, in the considered opinion of this court, the petitioners are also entitled to the similar benefit. The respondents are, therefor, directed to grant the petitioners upgradation from Grade IV(b) of Tripura Courts Stenographers Service to Grade IV(a) of the Tripura Courts Stenographers Service on completion of 4 years of service, if completed within the period of 01.01.1986 to 31.12.1995. 13. Their pay shall be fixed on the following day of completion of 4 years of service in the Grade IV(b) of the Tripura Courts Stenographers Service. However, as the writ petitions, as referred before, have been filed belatedly, the petitioners will be entitled to notional fixation from the date of completion of 4 years of service in the said grade till the date, 3 (three) years prior to the institution of the writ petitions. Such arrear, as would accrue following the above direction, shall be paid within a period of 3 months from the date when the petitioners shall furnish a copy of this order to the respondents. 14. At this point, Mr. S Lodh, learned counsel for the petitioners has submitted that all the writ petitions as filed by the petitioners separately had been filed on 19.02.2020. 14. At this point, Mr. S Lodh, learned counsel for the petitioners has submitted that all the writ petitions as filed by the petitioners separately had been filed on 19.02.2020. As such, the actual financial benefit shall be released from the date of 19.02.2017. With this observation and direction, this writ petition stands allowed and disposed of. There shall be no order as to costs.