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PETITIONER: M.R. GUPTA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT21/08/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR  669            1995 SCC  (5) 628  1995 SCALE  (5)29

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT VERMA. J.      Leave granted.      The  only  question  for  decision  is  :  Whether  the impugned judgment  of the Tribunal dismissing as time barred the application made by the appellant for proper fixation of his pay  is contrary  to law?  Only a few facts are material for deciding this point.      The appellant joined the service of the State of Punjab as Demonstrator  in  the  Government  Polytechnic  in  1967. Thereafter, he  joined service  in the railways in 1978. The appellant claimed  that the  fixation  of  his  pay  on  his joining service  in the  railways was  incorrect and that he was entitled  to  fixation  of  his  pay  after  adding  one increment to  the pay  which he would have drawn on 1.8.1978 in accordance  with Rule No. 2018 (N.R.S.N. 6447) equivalent to  Fundamental   Rule  22-c.   The  representation  of  the appellant to  this effect  was rejected  before coming  into force  of   the  Administrative  Tribunals  Act,  1985.  The appellant then  filed an  application on 4.9.1989 before the Tribunal praying  inter alia  for  proper  fixation  of  his initial  pay   with  effect   from  1.8.1978   and   certain consequential benefits. The application was contested by the respondents on  the ground that it was time barred since the cause of  action had  arisen at  the  time  of  the  initial fixation of  his pay  in 1978  or latest on rejection of his representation   before    coming   into    force   of   the Administrative   Tribunals   Act,   1985.   The   subsequent representations made by the appellant for proper fixation of his pay were alleged to be immaterial for this purpose.      The Tribunal  has  upheld  the  respondents’  objection based on the ground of limitation. It has been held that the appellant  had  been  expressly  told  by  the  order  dated 12.8.1985 and  by another letter dated 7.3.1987 that his pay had been  correctly fixed  so that  he should  have assailed

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that order  at that  time "which  was one  time action". The Tribunal held that the raising of this matter after lapse of 11  years  since  the  initial  pay  fixation  in  1978  was hopelessly barred  by time. Accordingly, the application was dismissed as  time barred  without going  into the merits of the appellant’s claim for proper pay fixation.      Having heard  both sides,  we are  satisfied  that  the Tribunal has  missed the  real point and overlooked the crux of the  matter.  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. 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  since it  is based  on a  recurring cause of action.      The Tribunal  misdirected itself  when it  treated  the appellant’s claim  as ’one time action’ meaning thereby that it was  not a continuing wrong based on a recurring cause of action. The  claim to be paid the correct salary computed on the basis  of proper pay fixation, is a right which subsists during the  entire tenure of service and can be exercised at the time  of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This  right of  a Government  servant to  be paid the correct  salary   throughout   his   tenure   according   to computation made  in accordance  with rules,  is akin to the right of  redemption which  is an  incident of  a subsisting mortgage  and  subsists  so  long  as  the  mortgage  itself subsists, unless  the equity  of redemption is extinguished. It is  settled that the right of redemption is of this kind. (See Thota  China Subba  Rao and  Others vs. Mattapalli Raju and Others, AIR 1950 Federal Court 1).      Learned  counsel  for  the  respondents  placed  strong reliance on  the decision  of this Court in S.S. Rathore vs. State of  Madhya  Pradesh,  [1989]  Supp.  1  SCR  43.  That decision has  no application in the present case. That was a case of termination of service and, therefore, a case of one time action,  unlike the claim for payment of correct salary according to the rules throughout the service giving rise to a fresh cause of action each time the salary was incorrectly computed and paid. No further consideration of that decision is required  to indicate  its inapplicability in the present case.      For the  aforesaid  reasons,  this  appeal  has  to  be

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allowed. We make it clear that the merits of the appellant’s claim have  to be  examined and  the only point concluded by this decision  is the  one decided  above. The  question  of limitation  with  regard  to  the  consequential  and  other reliefs including  the arrears, if any, has to be considered and decided  in accordance  with law  in due  course by  the Tribunal.  The  matter  is  remitted  to  the  Tribunal  for consideration of  the application and its decision afresh on merits in accordance with law. No costs.