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2024 DIGILAW 252 (HP)

Ram Dass Premi v. State of H. P.

2024-04-09

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The instant petition has been filed for grant of the following substantive reliefs:- (i) To quash and set aside the impugned order dated 03.11.2018 contained in Annexure A-2 being arbitrary, illegal and against the spirit of the judgments referred to in this original application with all consequential benefits. (ii) To direct the respondents to release all the arrears of increments/pay & allowances w.e.f. 01.07.1990 to 29.02.2008 as per the judgment dated 22.12.2008 passed by the Hon'ble High Court of H.P. in case CWP No. 272 of 2005, titled as State of H.P. & Anr. vs. Madhvinder Sharma. 2. The petitioner joined the Department of Excise and Taxation as Clerk on 05.05.1971. He was promoted Excise & Taxation Inspector on 27.06.1989 and joined on 03.07.1989. The petitioner retired from government service on 29.02.2008. 3. The petitioner had approached the learned erstwhile Tribunal by filing of OA(M) No. 16 of 2016, for grant of the following reliefs: “(i) To direct the respondents to release all the 11 increments for the service rendered by the applicant in the Department of Excise & Taxation, Himachal Pradesh from 01.07.1990 to 2000. (ii) To direct the respondents to grant the consequential benefits in favour of the applicant flowing out of the pay fixation an grant of 11 increments alongwith arrears and interest thereupon.” 4. According to the petitioner, his case was squarely covered by the judgment render by the learned Division Bench of this Court in CWP No. 272 of 2005, titled as State of H.P. & Anr. vs. Madhvinder Sharma and accordingly the learned Tribunal vide its order dated 17.03.2016 disposed of the petition with a direction to the respondents/competent authorities to consider the case of the petitioner in light of the aforesaid judgment. 5. In compliance to the judgment, the respondents fixed the pay of the petitioner vide Office Order No. 1-96/76-EXN-H-Estt. 21770-74, dated 27.07.2017, whereby they restricted the arrears to three (3) years prior to the date of filing representation/ claim/petition in terms of the Notification issued by the Finance Department No. FIN(PR)-B(7)-16/98-III (Agriculture) dated 15.12.2011, which was issued in pursuance to the judgment of the Hon'ble Supreme Court in Jai Dev Gupta vs. State of Himachal Pradesh & Anr. AIR 1998 SC 2819 . 6. AIR 1998 SC 2819 . 6. Aggrieved by the action of the respondents in restricting the claim to three (3) years prior to the filing of the claim, the petitioner has filed the instant petition on the ground that the action of the respondents is violative of the Constitution, especially, Articles 14 and 16. We have heard learned counsel for the parties and have gone through the material placed on record. 7. The moot question is as to whether arrears in this case could have been restricted to three (3) years prior to the petition and not before that. 8. In deciding this question, it is important to note that this Court had decided CWP No. 272 of 2005, titled as State of H.P. & Anr. vs. Madhvinder Sharma as far back on 22.12.2008, just shortly before the petitioner had retired on 29.02.2008. However, the petitioner waited for nearly eight (8) years to approach the Tribunal for the first time only in the year, 2016. 9. The Hon'ble Supreme Court in number of cases has restricted the arrears of salary and allowances to three (3) years before filing of the petition and not before that. Reference in this regard can conveniently be made to the judgments of the Hon'ble Supreme Court in Anand Swarup Singh vs. State of Punjab, AIR 1972 SC 2638 , Sakaldeep Sahal Srivastava vs. Union of India & Anr. AIR 1974 SC 338 , Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir & Ors. AIR 1981 SC 122 , M. R. Gupta vs. Union of India & Ors. (1995) 5 SCC 628 , State of Punjab & Ors. vs. Kulbir Singh (1997) 11 SCC 394 , Jai Dev Gupta vs. State of Himachal Pradesh & Anr. AIR 1998 SC 2819 , Jaswant Singh vs. Punjab Poultry Field Staff Association & Ors. (2002) 1 SCC 261 , Shiv Dass vs. Union of India & Ors. (2007) 9 SCC 274 , Union of India & Ors. vs. Tarsem Singh (2008) 8 SCC 648 . 10. In Shiv Dass' case (supra) , the Hon'ble Supreme Court took note of the inordinate delay of the petitioner before the Court and emphasized that even in cases of recurring cause of action, such as payment of pension, the Court cannot overlook the delay and the relief could be restricted to the period of three years. 10. In Shiv Dass' case (supra) , the Hon'ble Supreme Court took note of the inordinate delay of the petitioner before the Court and emphasized that even in cases of recurring cause of action, such as payment of pension, the Court cannot overlook the delay and the relief could be restricted to the period of three years. It is further held that if there is negligence or omission on the part of the writ petitioner in filing the petition, which in the given facts and circumstances would cause prejudice to the opposite party, the High Court may even refuse to entertain the petition. 11. Thus, the delay in approaching the Court is an important factor, which cannot be over- looked by this Court and, therfore, the action of the respondents in the given facts and circumstances in restricting the claim to three (3) years is fully justified. 12. Even otherwise, the respondents were bound by the instructions issued by the government on 27.07.2017, which unfortunately have not been questioned by the petitioner. 13. It is not in dispute that at the relevant time, disputes of the instant kind would lie only with the Administrative Tribunal that was functional in this State and the same is clearly barred by limitation under Section 21 of the Administrative Tribunal Act, 1985 (for short ‘Act’), which reads as under: “21. Limitation. - (1) A Tribunal shall not admit an application,— (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where- (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.” 14. While considering the aforesaid Section, the Hon’ble Supreme Court in D.C.S. Negi vs. Union of India and others, decided on 07.03.2011 in SLP (C) No.7956 of 2011, has very clearly delineated the powers of the Tribunal in respect of limitation and it was held that Section 21 of the Act unambiguously mandates the period within which Government employee has to agitate before the Tribunal for consideration and adjudication of his case and it is apt to reproduce the following observations: “A reading of the plain language of the above reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3). In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant.” 15. The petition is otherwise barred by the principles of delay and laches as the petitioner has not been able to show any due diligence as to why he kept sleeping over a period of 8 years. 16. In view of the aforesaid discussion, we do not find merit in the instant petition and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of.