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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.