AFR

Neutral Citation No. - 2024:AHC:183119-DB

Court No. - 29

Case :- SPECIAL APPEAL No. - 973 of 2024

Appellant :- Ram Kishor Dixit

Respondent :- State Of U.P. And 7 Others

Counsel for Appellant :- Gyanesh Kumar,Manoj Kumar

Singh

Counsel for Respondent :- C.S.C.

Hon'ble Vivek Kumar Birla,J.

Hon'ble Dr. Yogendra Kumar Srivastava,J.

(Per : Dr . Yogendra Kumar Srivasta va,J. )

1.Heard Sri Manoj Kumar Singh, learned counsel for the

appellant and Sri Ankit Gaur, learned Standing Counsel

appearing for the State-respondent.

2.The present intra court appeal is directed against the

judgment and order 23.08.2024 passed by the learned

Single Judge in Writ-A No.12140 of 2024 (Ram Kishor Dixit

Vs. State of UP and others), in terms of which the writ

petition has been dismissed on the ground of the delay.

3.The records of the case indicate that the writ petition

had been filed with the assertion that the petitioner was

initially appointed as Assistant Teacher in the CT Grade in a

recognized and aided educational institution on 01.09.1973,

and was regularized by an order dated 30.06.1975. He was

awarded revised pay scale vide order dated 03.06.1989 and

the benefit of selection grade after 10 years' service in the

LT Grade.

4.It is stated that the petitioner was subsequently

promoted as Lecturer (Sociology) on a vacant post in the

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

institution by the Committee of Management with the

approval of the District Inspector of Schools by an order

dated 20.11.1997. The petitioner subsequently

superannuated on 30.06.2009.

5.Certain representations by the petitioner raising claims

for arrears of salary from CT Grade to LT Grade and

promotional pay scale were said to have been submitted.

6.The petitioner thereafter preferred a writ petition

being Writ-A No.12140 of 2024 seeking a direction to the

Director, Secondary Education, UP, Allahabad to take

appropriate action for payment of arrears due to him from

CT Grade to LT Grade and promotional pay scale together

with interest, and to decide the representations stated to be

pending in this regard.

7.The writ petition was opposed by the counsel

appearing for the State-respondents on the ground of the

same was barred by delay and laches.

8.The writ Court, upon examining the facts of the case,

particularly that the petitioner had superannuated in the

year 2009, held that his claim for payment of arrears from

CT Grade to LT Grade and also promotional pay scale, could

not be entertained, particularly as he had been given the LT

Grade in the year 1989, and the promotional pay scale in

the year 1996.

9.The learned Single Judge upon taking note of the fact

that the petitioner had not raised the issue for the last 35

years, and the writ petition having been filed without

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

explaining laches, proceeded to dismiss the writ petition on

the ground of delay.

10.Counsel appearing for the appellant has pressed the

appeal by arguing that the relief sought being with regard

to arrears of salary, pertains to a recurring cause of action

arising from month to month, and therefore the same could

have been rejected on the ground of delay. It has been

further urged that reliance placed by the learned Single

Judge on the decision in the case of Union of India and

others Vs. Tarsem Singh

1

, is misplaced, and the said

judgment would not be applicable in the facts of the case.

11.Learned Standing Counsel appearing for the State-

respondents has supported the reasoning given by the

learned Single Judge, and has contended that the claim

which had been sought to be raised by the appellant-

petitioner was highly time barred and that the same has

rightly been rejected.

12.Counsel appearing for the appellant, despite specific

queries made by the Court, could not point out from the

records the basis on which the claim was being made for

arrears from CT Grade to LT Grade and the promotional pay

scale. The averments in the writ petition and the documents

which have been annexed alongwith the same also are not

very clear in this regard.

13.There is no specific mention in the pleadings of the

writ petition regarding the date on which the benefit of LT

Grade was granted to the petitioner and also the period for

which the arrears in this regard has been sought to be

1(2008) 8 SCC 648

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

claimed. The only mention in this regard is in a

representation dated 25.05.2023 said to have been

submitted by the appellant, wherein it is sought to be

asserted that the petitioner was placed in the LT Grade on

01.01.1986. In the representation also, no details have been

mentioned regarding the period for which arrears were

sought to be claimed.

14.It is the own case of the petitioner that he was

substantively appointed against the post of Assistant

Teacher in the CT Grade and that consequent to the

decision of the State Government declaring CT Grade to be

the dying cadre, his services stood merged in the LT Grade.

15.The order dated 19.11.1997, a copy whereof is on

record as annexure no.2 to the writ petition, and in terms of

which the petitioner was given ad hoc promotion against

the vacant post of Lecturer in the institution, is also

indicative that the petitioner had been holding the

substantive post in the CT Grade.

16.There is no material on record which may suggest that

upon merger of the CT Grade into LT Grade, any arrears in

regard to the same became due to the petitioner, and that

the same had remained unpaid. There is also no material

available on record which may suggest that any arrears

were due to the petitioner in regard to the promotional pay

scale.

17.The petitioner raised his claim for the first time, upon

attaining the age of superannuation, by a representation

stated to have been submitted on 25.05.2023 and thereafter

sought to agitate his claim by preferring a writ petition in

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

the year 2024. The significant delay raises concerns as to

whether the claims would be barred by laches.

18.In the judgment in the case of Union of India Vs.

Tarsem Singh (supra), which has been relied upon by the

writ Court, and upon which counsel for the appellant has

also sought to place reliance, it was held that claims based

on ‘continuing wrong’ would not be barred by delay, but in

respect of relief for recovery of arrears for a past period,

the principles relating to ‘recurring/successive wrongs’

would apply.

19.The position in this regard was summarized as follows:-

"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."

(emphasis supplied)

20.The principle underlying ‘continuing wrongs’ was

explained in an earlier decision in the case of Balakrishna

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

Savalram Pujari Waghmare Vs. Shree Dhyaneshwar

Maharaj Sansthan

2

, wherein it was observed as follows:-

"31. In other words, did the cause of action arise de die in diem

as claimed by the appellants? In dealing with this argument it is

necessary to bear in mind that Section 23 refers not to a

continuing right but to a continuing wrong . 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. It is only in regard to acts which can be properly

characterised as continuing wrongs that Section 23 can be

invoked."

(emphasis supplied)

21.The distinction between a claim with regard to monthly

salary and a claim for recovery of arrears for a past period,

was considered in the case of M.R. Gupta Vs. Union of

India

3

, and it was held that as long as the person concerned

is in service, fresh cause of action arises every month when

he is paid his salary on the basis of a wrong computation

made contrary to the rules whereas in respect of a claim for

recovery of arrears for a past period, the question of

limitation would arise. It was further held that any claim for

recovery of arrears calculated on the basis of difference in

pay which has become time barred would not be

recoverable. The observations made in this regard are as

follows:-

"So long as the appellant is in service, a fresh cause of action

arises every month when he is paid his monthly salary o n 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

2AIR 1959 SC 798

3(1995) 5 SCC 628

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

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."

(emphasis supplied)

22.The question of delay or laches in approaching the

High Court under Article 226 of the Constitution of India

was examined in Shiv Dass Vs. Union of India and

others

4

, and it was held that in a case of pension though

the cause of action continues from month to month, the

same cannot be a ground to overlook delay in filing the

petition. It was stated thus:-

"6. Normally, in the case of belated approach writ petition has to

be dismissed. Delay or laches is one of the factors to be borne in

mind by the High Courts when they exercise their discretionary

powers under Article 226 of the Constitution of India. In an

appropriate case the High Court may refuse to invoke its

extraordinary powers if there is such negligence or omission on

the part of the applicant to assert his right as taken in

conjunction with the lapse of time and other circumstances,

causes prejudice to the opposite party. Even where fundamental

right is involved the matter is still within the discretion of the

Court as pointed out in Durga Prashad v. Chief Controller of

Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of

course, the discretion has to be exercised judicially and

reasonably.

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. It would depend upon the

fact of each case. 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. The High Court did not examine whether

on merit the appellant had a case. If on merits it would have

found that there was no scope for interference, it would have

dismissed the writ petition on that score alone."

4(2007) 9 SCC 274

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

23.The concept of what would constitute ‘continuing

wrong’ has been evolved through legal pronouncements,

based on the factual context of the cases. In State of Bihar

Vs. Deokaran Nenshi

5

, the distinction between an ‘act or

omission which constitutes an offence once and for

all’ and an ‘act or omission which continues, and

therefore constitutes a fresh offence every time’ , was

pointed out and it was observed as follows:-

"5. A continuing offence is one which is susceptible of

continuance and is distinguishable from the one which is

committed once and for all. It is one of those offences

which arises out of a failure to obey or comply with a rule

or its requirement and which involves a penalty, the liability

for which continues until the rule or its requirement is

obeyed or complied with. On every occasion that such

disobedience or non-compliance occurs and re-occurs,

there is the offence committed. The distinction between the

two kinds of offences is between an act or omission which

constitutes an offence once and for all and an act or

omission which continues, and therefore, constitutes a

fresh offence every time or occasion on which it continues."

(emphasis supplied)

24.The distinction between a ‘continuing wrong’ and a

‘wrong or default which is complete when it is

committed’, was again pointed out in the case of

Commissioner of Wealth Tax, Amritsar Vs. Suresh

Seth

6

, in the following words:-

"11. …The distinctive nature of a continuing wrong is that the

law that is violated makes the wrongdoer continuously liable for

penalty. A wrong or default which is complete but whose effect

may continue to be felt even after its completion is, however, not

a continuing wrong or default.

17. The true principle appears to be that where the wrong

complained of is the omission to perform a positive duty

requirin g a person to do a certain act the test to determine

whether such a wrong is a continuing one is whether the duty in

question is one which requires him to continue to do that act…"

(Emphasis supplied)

5(1972) 2 SCC 890

6(1981) 2 SCC 790

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

25.The basis of the doctrine of laches and the factors

which are to be considered where delay and laches would

be sufficient to deny relief to the petitioner, were examined

in UP Jal Nigam and another Vs. Jaswant Singh and

another

7

and referring to the statement of law in

Halsbury's Laws of England , para 911, p. 395, it was

stated thus:-

“12. The statement of law has also been summarised in

Halsbury's Laws of England, para 911, p. 395 as follows:

“In determining whether there has been such delay as to

amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's

part.

Acquiescence in this sense does not mean standing by while the

violation of a right is in progress, but assent after the violation

has been completed and the claimant has become aware of it. It

is unjust to give the claimant a remedy where, by his conduct,

he has done that which might fairly be regarded as equivalent to

a waiver of it; or where by his conduct and neglect, though not

waiving the remedy, he has put the other party in a position in

which it would not be reasonable to place him if the remedy

were afterwards to be asserted. In such cases lapse of time and

delay are most material. Upon these considerations rests the

doctrine of laches.”

26.The differential treatment between a continuing wrong

and an accrued wrong was subject matter of consideration

in State of MP and others Vs. Yogendra Shrivastava

8

,

and it was held that in regard to claim for higher allowances

prospectively from the date of application, the bar of

limitation or the principle of delay or laches would not be

applicable since denial of benefit of higher allowance is a

continuing wrong and cause of action arises every month at

time of payment of salary; however, for consequential relief

of payment of arrears for past period, principle of

7(2006) 11 SCC 464

8(2010) 12 SCC 538

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

successive or recurring wrong would apply and arrears

would not be granted for any period beyond three years

prior to the date of original application. The observations

made in this regard in the aforesaid decision are as follows:-

“18. ...Where the issue relates to payment or fixation of salary or

any allowance, the challenge is not barred by limitation or the

doctrine of laches, as the denial of benefit occurs every month

when the salary is paid, thereby giving rise to a fresh cause of

action, based on continuing wrong. Though the lesser payment

may be a consequence of the error that was committed at the

time of appointment, the claim for a higher allowance in

accordance with the Rules (prospectively from the date of

application) cannot be rejected merely because it arises from a

wrong fixation made several years prior to the claim for correct

payment. But in respect of grant of consequential relief of

recovery of arrears for the past period, the principle relating to

recurring and successive wrongs would apply. Therefore the

consequential relief of payment of arrears will have to be

restricted to a period of three years prior to the date of the

original application. (See M.R. Gupta v. Union of India [(1995) 5

SCC 628] and Union of India v. Tarsem Singh, [(2008) 8 SCC

648]”

(emphasis supplied)

27.The proposition of law laid down in the case of Union

of India Vs. Tarsem Singh (supra) was examined in

Prahlad Rout Vs. All India Institute of Medical

Sciences

9

, and the same was held to be unexceptionable. It

was reiterated that where there is a ‘continuing wrong’ in

relation to a service related claim, relief may be granted

notwithstanding delay, provided the granting of the relief

does not unsettle matters settled and affect third parties. It

was further observed that where the cause of action is not a

continuing one, the Court may refuse monetary claim on the

ground of delay, specially in respect of arrears. The

observations made in this regard are being reproduced

below:-

9(2021) 14 SCC 472

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

"28. The proposition of law laid down by this Court in Union of

India v. Tarsem Singh, (2008) 8 SCC 648 is unexceptionable. It is

well settled that where there is a continuing wrong in relation to

a service related claim, relief may be granted notwithstanding

delay, provided the granting of the relief does not unsettle

matters settled and affect third parties. The judgment was,

however, rendered in the context of discretionary relief in

proceedings under Article 226 of the Constitution of India, for

which there is no limitation prescribed. Where the cause of

action is not a continuing one the High Courts refuse monetary

claim on the ground of delay, specially arrears. In this context it

would be pertinent to refer to the concluding part of paras 7 and

8 of the judgment of this Court in Tarsem Singh."

(emphasis supplied)

28.The principles relating to the effect of discretion under

Article 226 of the Constitution to interfere in cases of the

undue delay, laches and acquiescence were summarised in

Union of India Vs. N. Murugesan

10

and the following

observations were made:-

“Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are

overlapping and interconnected on many occasions. However,

they have their distinct characters and distinct elements. One

can say that delay is the genus to which laches and

acquiescence are species. Similarly, laches might be called a

genus to a species by name acquiescence. However, there may

be a case where acquiescence is involved, but not laches. These

principles are common law principles, and perhaps one could

identify that these principles find place in various statutes which

restrict the period of limitation and create non-consideration of

condonation in certain circumstances. They are bound to be

applied by way of practice requiring prudence of the court than

of a strict application of law. The underlying principle governing

these concepts would be one of estoppel. The question of

prejudice is also an important issue to be taken note of by the

court.

Laches

21. The word “laches” is derived from the French language

meaning “remissness and slackness”. It th us involves

unreasonable delay or negligence in pursuing a claim involving

an equitable relief while causing prejudice to the other party. It

is neglect on the part of a party to do an act which law requires

10(2022) 2 SCC 25

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

while asserting a right, and therefore, must stand in the way of

the party getting relief or remedy.

22. Two essential factors to be seen are the length of the delay

and the nature of acts done during the interval. As stated, it

would also involve acquiescence on the part of the party

approaching the court apart from the change in position in the

interregnum. Therefore, it would be unjustifiable for a Court of

Equity to confer a remedy on a party who knocks its doors when

his acts would indicate a waiver of such a right. By his conduct,

he has put the other party in a particular position, and

therefore, it would be unreasonable to facilitate a challenge

before the court. Thus, a man responsible for his conduct on

equity is not expected to be allowed to avail a remedy.

23. A defence of laches can only be allowed when there is no

statutory bar. The question as to whether there exists a clear

case of laches on the part of a person seeking a remedy is one of

fact and so also that of prejudice. The said principle may not

have any application when the existence of fraud is pleaded and

proved by the other side. To determine the difference between

the concept of laches and acquiescence is that, in a case

involving mere laches, the principle of estoppel would apply to

all the defences that are available to a party. Therefore, a

defendant can succeed on the various grounds raised by the

plaintiff, while an issue concerned alone would be amenable to

acquiescence.

Acquiescence

24. We have already discussed the relationship between

acquiescence on the one hand and delay and laches on the

other.

25. Acquiescence would mean a tacit or passive acceptance. It is

implied and reluctant consent to an act. In other words, such an

action would qualify a passive assent. Thus, when acquiescence

takes place, it presupposes knowledge against a particular act.

From the knowledge comes passive acceptance, therefore

instead of taking any action against any alleged refusal to

perform the original contract, despite adequate knowledge of its

terms, and instead being allowed to continue by consciously

ignoring it and thereafter proceeding further, acquiescence does

take place. As a consequence, it reintroduces a new implied

agreement between the parties. Once such a situation arises, it

is not open to the party that acquiesced itself to insist upon the

compliance of the original terms. Hence, what is essential, is the

conduct of the parties. We only dealt with the distinction

involving a mere acquiescence. When acquiescence is followed

by delay, it may become laches. Here again, we are inclined to

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

hold that the concept of acquiescence is to be seen on a case-to-

case basis.”

29.Having regard to the foregoing discussion, the legal

position that emerges, may be summarised as follows:

29.1. A ‘continuing wrong’ arises from a wrongful act

that creates a continuous source of injury. The wrongdoer

remains liable as long as the injury continues. A ‘completed

wrong’ results in a one-time injury, even if its effects persist.

29.2. Claims based on a ‘ continuing wrong’ (e.g,

incorrect pay fixation or pension) are not barred by delay if

they involve ongoing injury. Relief for monetary arrears in

‘recurring wrongs’ is generally limited to three years prior

to the filing of a writ or application, and Courts would

refuse relief where granting it disturbs settled rights or

impacts third parties.

29.3. Recurring cause of action or fresh cause of

action arises each month when an employee receives a

salary based on wrongful pay computation. Relief for pay

fixation can be sought at any time while in service whereas

recovery of arrears is subject to the limitation period and

does not extend beyond three years.

29.4. Pension claims are treated as ‘ recurring

wrongs’, with a fresh cause of action arising each month.

Courts limit retrospective relief to three years before filing

the claim unless the delay significantly prejudices the

opposite party or public interest.

29.5. Relief for ‘continuing wrongs’ in service-related

claims may be granted despite delay, provided it does not

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

disturb settled rights. In cases of ‘completed wrongs’ ,

delay or laches often bars monetary claims, especially

arrears.

29.6. A ‘continuing wrong’ arises out of failure to

comply with a rule, leading to ongoing liability until

compliance and fresh periods of limitation arise as long as

the wrongful act or breach persists, provided there is a

positive duty to perform an act. A ‘completed wrong’ is a

one-time act or omission with persistent effect and does not

qualify as a ‘continuing wrong’.

30.In the instant case, as we have already noted above, no

material has been placed before us to substantiate the basis

of the claim for arrears on account of the merger of CT

Grade into LT Grade, as also on account of the benefit of

promotional pay scale which had been granted to the

petitioner subsequently.

31.Even otherwise, the arrears on account of the

petitioner having been placed in the LT Grade, as also on

account of the benefit of the promotional pay scale, would

have become due on the dates when the aforesaid benefits

had been granted i.e. in the year 1986 and the year 1996

respectively. Any cause of action in regard to the same

could be said to have arisen on the said dates, and would

constitute a ‘one-time cause of action’ and not a

‘recurring cause of action’.

32.The claim in regard to the aforesaid arrears having not

been agitated by the petitioner while being in service and

the same having raised by submitting a representation in

the year 2023 and thereafter filing a writ petition in the

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Special Appeal No.973 of 2024 (Ram Kishor Dixit Vs. State of UP and others)

year 2024, much after the petitioner had superannuated in

the year 2009, we do not find any patent error or illegality

in the order passed by the learned Single Judge dismissing

the writ petition on the ground of delay/laches.

33.The appeal lacks merit and is accordingly dismissed.

Order Date :- 22.11.2024

Shahroz

(Dr. Y.K. Srivastava,J.) (V.K. Birla,J.)