Sarwari Begum vs State Of West Bengal & Ors

Rajasekhar Mantha, J

The petitioner is a widow of one Md. Farooque who died while in service as Assistant Teacher under the District Primary School Council, West Bengal in the year 1999.

On account of her husband's Pension Payment Order was issued on the 30th of November, 2004 and the petitioner received family pension from 2004 to 2017. In the year 2017 for the first time the petitioner applied under the RTI Act for re-fixation of her husband's pay. The authorities replied back that the petitioner's husband's pay was fixed in terms of the Circular in the November, 2003. The petitioner claims that she is entitled to her husband's pay re-fixed since she received a sum of Rs. l25/- less than what she is entitled to.

The  learned  Counsel  for  the  petitioner would  rely  upon  a  judgement  of  the  Hon'ble Supreme Court in the case of M.R. Gupta vs. Union of India & Ors. reported in (1995) 5 SCC 628. At paragraph 5 the Hon'ble Supreme Court held as follows.

Para 5. 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 fond 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 a laches etc. 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.

Based on the above judgment, the learned Counsel for the petitioner would argue that there is no limitation for claiming re-fixation of pay and that his client is entitled to re-fixation of her husband's pay and consequently, amendment and issuance of the fresh PPO.

This Court has carefully gone through the context of the writ petition and the decision cited by the petitioner. In M.R. Gupta vs. Union of India & Ors. (supra) the Hon'ble Supreme Court was dealing with an application of an employee who sought re-fixation of pay while he was in service. In the instant case, not only the re-fixation sought post normal superannuation but also about 6 years after the issuance of the original PPO in the year 2004.

The M.R. Gupta decision is distinguishable on the facts of the case and cannot aid any right of the petitioner.

In those circumstances, this Court is of the view that the writ petition is wholly barred by the principles of delay and laches. The doctrine of estoppel would also come to play in the facts of the instant case.

With the aforesaid observations, the instant writ petition being WP 20842 (W) of 2018 must fail and hereby dismiss.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties.